BHARAT ALUMINIUM COMPANY LIMITED Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) The only question for consideration before this Court in the instant petition is whether Respondent 1/Tahsildar has any jurisdiction viz-a-viz Sec. 170 of the Electricity Act, 2003 (henceforth "the Act of 2003") for initiating recovery proceedings against the Petitioner qua Cross Subsidy Surcharge (henceforth "the CSS") as arrears of land revenue.

(2.) Facts of the case, in short, are that the Petitioner/company established a captive generating plant under Sec. 9 of the Act of 2003 having installed capacity of 2010 MW for the purpose of carrying electricity to the destination of its own use or its captive users. The Petitioner was an extra high voltage consumer connected to the distribution network of Respondent 2/CSPDCL till 30/9/2013 and had been essentially process power under open access for the purpose of meeting its base load requirement. After 30/9/2013, the Petitioner was connected with the central transmission utility which is continuing presently. For the same, the Petitioner has been paying all the open access charges including CSS to the Respondents. The Chhattisgarh State Electricity Regulatory Commission (CSERC) has notified the Regulations, 2011 regarding methodology for determination of CSS and other open access charges payable by open access consumers in the State of Chhattisgarh. The CSERC issued tariff orders for financial year 2013-14, 2014-15, 2015-16 thereby approving the retail supply tariff of the Respondents for the said financial years. The CSERC has also notified the CSERC tariff Regulations, 2015. Respondent 2 imposed CSS upon the Petitioner for the open access power, procured during financial year 2013-14, 2014-15 and 2015-16 and raised bills total amounting to Rs.90,19,21,948.00 which is in the nature of electricity charges which are paid by open access consumers to the distribution licensee including by a consumer/company owning the captive generating plant if they fail the test of Rule 3 of the Electricity Rules, 2005. In compliance of the interim order dtd. 21/11/2014 and 10/7/2015 passed by CSERC in Petition No.37/2014, the Petitioner deposited Rs.45,01,73,359..00 Thereafter, the said petition was dismissed by the CSERC vide its order dtd. 27/7/2016. In the meantime, the Petitioner proceeded to file appeals before the Appellate Tribunal challenging the tariff orders dtd. 12/6/2014 and 31/3/2017 passed by CSERC to the extent of determination of CSS. Subsequently, the Petitioner filed Petition No.70/2020 before CSERC. The Petitioner also proceeded to file a writ petition being Writ Petition (C) No.1084 of 2017 before this Court challenging the Regulation 33(6)(b)(iii) of CSERC OA Regulations 2011. The petition was dismissed by this Court vide order dtd. 11/2/2020. Being aggrieved by the same, the Petitioner proceeded to file an SLP before the Supreme Court which is pending. After the judgment of this Court, Respondent 2 vide demand/invoices dtd. 2/7/2020, 7/7/2020, 22/7/2020, 4/8/2020 and 2/9/2020 raised a fresh demand of Rs.1,04,47,83,578.00 upon the Petitioner towards the recovery of the CSS for the quantum of power procured under open access which is in the nature of electricity supply dues. The Petitioner moved a letter before Respondent 2 requesting the recalculation of the CSS which was dismissed by Respondent 2. The Petitioner in Petition No.70/2020 pending before CSERC made an interim application under Sec. 94(2) of the Act of 2003 seeking stay of the demand notice. In the meantime, even during pendency of said application, Respondent 2, vide letter dtd. 23/8/2021, requested the office of Respondent 1 for raising a demand of Rs.67,37,74,884.00 towards recovery of the CSS. Accordingly, Respondent 1/Tahsildar issued the impugned demand notice dtd. 1/9/2021 (Annexure P4) to the Petitioner. Hence, this petition.

(3.) Respondent 2/CSPDCL, in its return, has raised mainly 3 grounds placing reliance on the following provisions of law: