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BEFORE THE HARYANA ELECTRICITY REGULATORY COMMISSION AT PANCHKULA

Case No. HERC/PRO-17 of 2015

Date of Hearing: 10.08.2015 & 6.10.2015 Date of Order: 10.11.2015 In the Matter of Petition under Section 42(4) of the Electricity Act, 2003 read with Regulation 22 of the

Haryana Electricity Regulatory Commission (Terms and conditions for grant of

Connectivity and Open Access for Intra-State Transmission and Distribution System)

Regulations, 2012 seeking withdrawal of Sales Circular No. D-20/2015 dated

6.07.2015 issued by DHBVNL for levy of Additional Surcharge for the FY 2015-16.

And in the Matter of

Suo motu Order dated 26.04.2012 passed by the HERC in the matter of seeking

review / clarifications on various issues by the Power Utilities and other stakeholders

through ordinary letters / emails etc.

Petitioner

M/s Jindal Stainless Limited, Hisar.

Respondents

1. Dakshin Haryana Bijli Vitran Nigam Limited (DHBVNL), Hisar

2. Uttar Haryana Bijli Vitran Nigam (UHBVNL), Panchkula.

Present on behalf of the Petitioner

Shri R.K. Jain, Adviser, JSL Shri R.P. Jindal, ED, JSL, Hisar

Present on behalf of the Respondents

Shri Varun Pathak, Advocate Shri Raghujeet S. Madan & Sonia Madan, Advocates Shri Atul Pasrija, XEN, DHBVNL Shri R.K. Jain, GM/RA, UHBVNL

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Shri Nirmal Singh, AE/RA, UHBVNL Shri Amit Singh, SDO, DHBVNL

Quorum

Shri Jagjeet Singh, Chairman

Shri M.S Puri, Member

ORDER

Brief Background of the Case

1. The Haryana Electricity Regulatory Commission had issued Order dated 29.05.2014

determining ARR / Tariffs for Distribution and Retail Supply for the FY 2014-15. In the

said Order Additional Surcharge to be paid by the Open Access Consumers in the FY

2014-15 was also determined. At Para 5.3 of the said Order the Commission had

observed as under:-

“The Commission observes that the distribution licensees, based on the

data provided by them for the period April 2013 to March 2014, have been

able to conclusively prove, backed with calculations, that their long term

power purchase commitments do get stranded most of the times when

power is drawn by embedded open access consumers from other sources

and the Discoms have to bear the fixed cost of such stranded power which

ultimately get passed on to other consumers. They have worked out the

cost of such stranded power and based on that has worked out the

additional surcharge as 97 paise / unit for FY 2013-14. The Commission

further observes that it would not be fair if the cost incurred by

distribution licensees for the power purchase commitments stranded on

account of power drawn by open access consumers from other sources is

passed on to other consumers as that would amount to cross-subsidising of

the open access consumers by other consumers. It would also be fair to

assume that, as the number of open access consumers and power drawn

through open access is increasing every year, the additional surcharge

worked on similar basis for FY2014-15 would not work out less than as has

been worked out by UHBVNL for FY 2013-14. The Commission, therefore,

after careful consideration of the submissions made in the petition by

UHBVNL, replies / comments furnished by various stakeholders in reply to

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the petition, the comments / submissions by the petitioners and other

stakeholders made during the hearing held on 27.05.2014 and the relevant

statutory provisions is of the considered view that the additional

surcharge cannot be attributed to the entire energy drawn through Open

Access as the Discoms are expected to take into consideration some

quantum of power that would be drawn by the Open Access Consumers

based on the past trend while undertaking demand assessment and load

management. The Commission therefore considers it appropriate to pass

on 50% of the stranded cost worked out by the Discoms on account of

power drawn through Open Access. Such reduction is necessary in view of

the fact that the Discoms charges from most of the Open Access consumer

a part of the cost of distribution system and cost of 6% losses as wheeling

charges. Further the Discoms also collect, from most Open Access

consumers, demand charges on the basis of the connected load / contract

demand. Hence in the considered view of the Commission some adjustment

of the demand charges paid by the Open Access consumers in the stranded

fixed cost of the Discoms has to be made. HERC Order on ARR & Tariff of

UHBVNL & DHBVNL for D&RS business under MYT framework for the

control period FY2014-15 to the FY 2016-17.

In view of the above disposition the Commission has now decided to levy

additional surcharge on the energy drawn by open access consumers

through open access @ 50 Paisa/kWh with effect from the date of this

Tariff Order. The additional surcharge shall be levied / recovered by the

distribution licensees from open access consumers as provided in

regulation 22 of the Haryana Electricity Regulatory Commission (Terms

and Conditions for grant of connectivity and open access for intra-State

transmission and distribution system) Regulations, 2012”.

2. The Petitioner M/s Jindal Stainless Limited (JSL) in the present Affidavit dated

18.07.2015 has submitted as under:-

That JSL is a large supply Industrial Consumers of the Respondent Nigam

(DHBVNL) having a sanctioned contract demand of 125 MVA and is getting power supply

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on 220 kV through an independent feeder. Further, they avail Inter-State and Intra-State

Open Access to wheel its Captive Power from Odisha as well as power purchased from

Indian Energy Exchange (IEX) through collective transaction.

That, the Commission, in its Order dated 29th May, 2014 (the relevant paragraph

has been cited at Point No. 1 of this Order) has recorded that the data supplied by the

Discoms regarding stranded power related to the FY 2013-14 and the Additional

Surcharge determined is applicable for the FY 2014-15 so as to pass on 50% of the

stranded cost estimated by the Discoms on account of power drawn through Open Access

w.e.f. 29.05.2014. Further, it has been recorded that the Discoms are already charging a

part of the cost of distribution system and cost of 6% losses as wheeling from most of the

Open Access consumers.

That while considering the ARR / Tariff for the FY 2015-16, the Commission did

not determine the Additional Surcharge to be levied in the FY 2015-16 and observed as

under:-

“The Discoms have filed the petition along with the supporting details on

04.03.2015 vide memo no. Ch-12/GM/RA/N/F-15/Vol-III dated 04.03.2015

wherein the Discoms , based on the fixed cost paid by them for the stranded

capacity due to scheduling of Open Access power by the embedded Open

Access consumers, have proposed an additional surcharge of Rs. 0.80 per unit

to be paid by such consumers. As the proposed levy of additional surcharge

shall affect a large number of electricity consumers, the Commission has

considered it appropriate to hold a public hearing before finalising the same.

Accordingly, the Commission shall schedule a hearing of the stakeholders and

other interested persons and after hearing their objections / comments as

well as the reply of the Petitioners thereto, shall pass an appropriate Order in

the matter”.

That subsequent to the above, the Commission initiated the proceedings to

determine Additional Surcharge to be applicable for the FY 2015-16 and scheduled a

hearing on 9.07.2015. The hearing was deferred as the supporting data furnished by the

Discoms was found incomplete and not in the required format. Thus, for all intents and

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purposes, the determinant of Additional Surcharge to be levied in the FY 2015-16 is still

undecided.

That on a clarification sought by the Faridabad Industries Association (FIA) vide

its letter dated 12.05.2015, the Commission, vide its Memo No. HERC/Tariff/Dir/719

dated 5/8.06.2015 addressed to the FIA, conveyed as under:-

“As the proposed levy of additional surcharge shall affect large number of

electricity consumers the Commission has considered it appropriate to hold a

public hearing before finalizing the same.

In view of the above, it is clarified that till the additional surcharge @ 50 Paise

/ Unit as decided by the Commission in its Order dated 29th May, 2014 is

revised or amended the same shall continue to be applicable”.

That in pursuance to the clarification (supra) the Respondent Nigam issued Sales

Circular No. 20/2015 dated 6.07.20915 (sic) conveying the clarification given by the

Commission.

That the Petitioner is aggrieved on the following grounds:-

The levy of Additional Surcharge is decided on the basis of data regarding

‘stranded power’ due to purchase of power from outside by the open access consumers

and is to be levied in the subsequent year. As the same is not a perpetual levy, its

applicability in the next year is purely an ad-hoc action and against the relevant laws and

Regulations. Hence, there cannot be an ad-hoc levy of Additional Surcharge before the

conclusion of the public hearing in the matter. Further, the Proviso to Regulation 22(3) of

the HERC Open Access Regulations, 2012 stipulates that any additional surcharge so

determined shall be applicable to all the Open Access consumers availing Open Access

from the date of determination of the same by the Commission. Therefore, till such time

the Commission determines the additional surcharge to be levied in the FY 2015-16, no

ad-hoc levy could be made effective.

That the issue of such clarification without holding public hearing is contrary to

the Hon’ble APTEL’s judgment dated 14.11.2013 in the Appeal No. 231 of 2012

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(JSL Vs DHBVN) wherein the Hon’ble APTEL had considered issuance of a similar

clarification by the HERC vide Memo No. HERC/Dir (Tariff) / ARR -11-12/1325-26 dated

28.07.2011 and held that the same was against the principles of natural justice and

accordingly the Commission’s Order to that extent was set aside.

That even this Commission had taken note of the matter of issuance of

clarifications on simple letters from Utility / Stakeholders and passed an Order dated

26.04.2012 that the Commission shall not respond to any such application / pleading

from the power utilities / stakeholders which are not filed in accordance with the laid

down procedure. Hence, the issuance of the impugned clarification vide letter dated

5/8.06.2015 is not only violation of the Hon’ble APTEL’s judgment in Appeal No. 231 of

2012 dated 14.11.2012 but also in violation of the Commission’s own Order dated

26.04.2012.

In view of the above the Petitioner has prayed as under:-

1. The clarification given by the office of the Commission vide letter dated 5/8.06.2015 may kindly be held in abeyance / withdrawn till such time a final Order is passed by the Commission on the determination of Additional Surcharge for the year 2015-16.

2. The impugned Sales Circular No. 20/2015 dated 6.07.2015 issued by the Respondent Nigam may kindly be quashed and necessary directions given to the Respondent Nigam to withdraw the above Circular from the date of issue.

3. The Respondent Nigam may kindly be directed to immediately refund the amount charged by way of additional surcharge w.e.f. 1.04.2015 till the order is passed by the Commission on determination of additional surcharge for the year 2015-16.

4. May kindly grant any other relief admissible to the Petitioner Company.

3. Reply filed by the Discoms (DHBVNL & UHBVNL)

DHBVNL

The Respondent DHBVNL, through Shri Varun Pathak / Raheel Kohli, Advocates,

filed a detailed written reply to the issues raised and relief sought by the Petitioner in the

present case. The said reply, in brief, is as under:-

The Respondent herein dwelt at length on the MYT Regulations, 2012 to establish

that the tariff determined under the MYT framework which includes ‘truing up’, shall

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continue till it is modified or revised by the Commission. It has been further submitted

that Additional Surcharge is one of the element (under income / receipt head) for

determination of tariff. Regulation 63 of the ibid Regulations provides that the Additional

Surcharge is to be determined as per HERC Open Access Regulations, 2012. Further,

Regulation 63(3) provides that the Discoms shall submit along with ARR, requisite

calculation for determination of cross subsidy surcharge and additional surcharge and

these charges as determined by the Commission shall be payable as determined by the

Commission “from time to time”.

DHBVNL has submitted that the tariff Order dated 29.05.2014 passed by the

Commission allowed Additional Surcharge @ 50 Paise / unit. Further, it was held that the

same shall be applicable w.e.f the date of the Tariff Order i.e. 29.05.2014 and shall remain

effective till it is revised by the Commission. Hence, in the light of the legal framework,

MYT Regulations, 2012, Open Access Regulations, 2012 and the Tariff Order dated

29.05.2014; the additional surcharge at the rate of 50 Paise/unit shall remain effective till

the time it is revised by the Commission.

Additionally, DHBVNL, in its reply, dwelt at length on the interpretation of “from

time to time” as per Section 14 of the General Clauses Act, 1897 as well as the following

judgments:-

a) State of Rajasthan Vs. Basant Agrotech (India) Ltd (2003) 15 SCC 1.

b) Vasantlal Maganbhai Sanjanwala Vs. State of Bombay and Others – AIR 1961 SC4.

c) Kashmir Singh Vs. Union of India and Others.-MANU/PH/1170/2002.

The sum and substances of the aforesaid judgments cited by the Respondent is that

the phrase “from time to time” “connotes “as occasion may arise, at intervals, now and

then occasionally” and not from “term to term”.

In conclusion DHBVNL has submitted that this Commission is empowered to

determine the Additional Surcharge as and when occasion requires and till then the rate

of additional surcharge i.e. 50 Paise / unit determined as per the Tariff Order dated

29.05.2014 shall prevail.

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UHBVNL

UHBVNL, in its written reply dated 29.09.2015 filed through Shri Raghujeet

Singh Madan & Sonia Madan, Advocates, has submitted that the Commission’s Order

dated 29th May, 2014 explicitly states that the levy of tariff shall remain ‘as it is’ till the

same is revised or amended by the Commission. Further, since the computation of

additional surcharge has been made a part of the ibid Order the same is also covered in

the expression ‘revised tariff’, the levy of entire tariff including additional surcharge. It has

also been pointed out that as the number of Open Access consumers and power drawn

thereto is increasing every year, the additional surcharge estimated on similar basis for

the FY 2014-15 would not work out less than as has been estimated by the UHBVNL for

the FY 2013-14. Hence, the continuation of levy of additional surcharge at the rates

assessed in the previous financial year is rational and just.

Additionally, it has been submitted that the Petitioner has wrongly set up its

present case on the Judgment of the Hon’ble APTEL in Appeal No. 231 of 2012 as well as

the Judgment in Appeal No. 204 of 2010. These judgments, relied upon by the Petitioner,

are in no manner applicable in the present case. The Respondent herein, in support of its

contention that the clarification issued by the Commission vide its Memo No. 5.06.2015 is

in fact a reiteration of its previous Order and the same contains no illegality or even

irregularity, cited APTEL’s judgment in Appeal No. 243 of 2012. The said judgment relied

on the settled law by the Hon’ble Supreme Court in Ram Chandra Singh Vs. Savitri Devi

and Others (2004) 12 SCC 713 upholding that an application for clarification or

modification touching the merits of the matter would not be maintainable but the

application for clarification may be entertained when it is shown that such a clarification

is necessary to the interest of justice and does not touch the merits of the matter. The

operative part of the ibid judgment cited by the Respondent herein is as under:-

“36. In the light of the above, we deem it appropriate to give a clarification with

reference to the above aspect to the effect that Interim Order passed by this

Tribunal got merged with the final judgment dated 28.11.2013. We feel that this

clarification has to be issued necessarily in the interest of justice as held by the

Hon’ble Supreme Court in (2004) 12 SCC 713 in the case of Ram Chandra Singh Vs

Savitri Devi and Others. Accordingly ordered”.

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The Respondent (DHBVNL) further cited Regulation 85 of the HERC (Conduct of

Business Regulations), 2004 which confers exemplary powers on the Commission to issue

such clarificatory Orders in the interest of justice. The relevant Regulation is reproduced

below:-

“86. Nothing in these Regulations shall be deemed to limit or otherwise affect the

inherent powers of the Commission to make such orders as may be necessary for

ends of justice or to prevent the abuse of the process of the Commission”.

In conclusion, the Respondent herein, submitted that viewed from any angle, the

impugned clarification issued by the Commission is valid and just. Hence, the prayer of

the Petitioner to defer the levy of additional surcharge is in violation of the objective of

introduction of additional surcharge. The deferment, if considered, will result in

additional burden to the Respondent as it will have to bear the fixed cost of power

purchase by taking additional loans.

4. On the aforesaid reply filed by the Discoms, the Petitioner vide filing dated

5.10.2015 raised the issue of incorrect affidavit attached with the reply and further

submitted that since the hearing in the matter was concluded on 10.08.2015, the reply

filed by the Discoms is totally uncalled for. Additionally, it has been submitted that the

Respondents have attempted to mix-up two entirely separate issues i.e. normal

distribution tariff determined under section 62 of the Electricity Act, 2003 and Additional

Surcharge determined under Section 42(4) of the said Act. Further, the additional

surcharge is determined (not revised or revisited) based on the six monthly details

regarding the quantum of such stranded cost and the period over which these remain

stranded and hence the same cannot be perceived as a general levy.

That in the hearing held on 10.08.2015 no one was present on behalf of UHBVNL

and no request was ever made to implead UHBVNL as a party in the present case. Further,

the Respondent present in the said hearing merely stated that the action taken by them

was simply in compliance of clarification dated 5/8.06.2015 issued by the Commission.

Further, the Commission vide its interim Order dated 11.08.2015, had directed UHBVNL

to submit its reply to the Petition under consideration by 7th September, 2015 with a copy

to the Petitioner, but till date no such reply has been received by the Petitioner.

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In conclusion it has been submitted by the Petitioner that this Commission has

to consider its own decision to issue letter of 8.06.2015 and no argument from the

Respondent Nigam is going to change the colour or substance of the case.

The Commission held a hearing in the matter on 10.08.2015 as the parties

mostly relied on their written submissions as reproduced in the present Order, the same,

for the sake of brevity, is not being reproduced here.

5. Commission’s Analysis & Order

At the outset, the Commission would like to deal with the preliminary objections

raised by the Petitioner i.e. defective Affidavit under which replies were filed by the

Respondent and impleading UHBVNL as a party in the present case. The Commission has

examined the Affidavits dated 29th September, 2015 (UHBVNL) as well as the Affidavit

dated 4th October, 2015 (DHBVNL) filed in the Commission and observes that both are in

order. However, the Commission hastens to add that the Discoms ought to exercise

caution while filing an Affidavit and any copy of the same that may be provided to the

other party should be complete in all respects and ought not to be different than what has

been filed in the Commission. In case such incidence happens, the officer/person

concerned shall be personally liable for the consequences that may follow for filing

defective/inconsistent Affidavits.

Regarding the second preliminary objection i.e. impleading UHBVNL without

any request from any party and filing reply after conclusion of the hearing, the Petitioner

needs to note that any tariff and charges including Additional Surcharge that is

determined by the Commission are equally applicable to both the Distribution Licensees

in Haryana i.e. UHBVNL and DHBVNL. Hence, before deciding any such issue it is

appropriate that both the Discoms are given an opportunity to present their views on any

Petition under the consideration of the Commission despite the fact that the Petitioner

may not have made one or the other Discom a party in the case preferred by them.

As far as the reply filed after conclusion of the hearing is concerned, the

Commission is of the view that till the time an Order disposing off the case is passed the

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Commission has the inherent powers to seek additional data / information or assistance

of any party. However, it is up to the Commission’s discretion whether to consider such

submissions including any reply filed or not. At times, when substantive additional data /

information is filed by any party on the directions of the Commission or even otherwise

the Commission endeavors to make the same available to all the parties concerned. In the

present case the Commission observes that the Petitioner on the one hand has questioned

the legality of the reply filed by the Discoms including alleged non – receipt of the reply

filed by UHBVNL while on the other hand it has been submitted that “…no arguments from

the Respondent Nigam is going to change the colour or substance of the case”. Hence, the

Commission finds no merit in the preliminary objections raised by the Petitioner and shall

now proceed to examine the case on merits.

On perusal of the Petition filed by M/s JSL including their arguments in the

public hearing as well as the replies filed by the Discoms, the Commission observes

that the short point for the consideration is whether the impugned clarification

issued (by the Commission) is ultra virus and the Discoms Sales Circulars that

flowed from it are null and void and liable to be withdrawn or not.

The Commission observes that the Petitioner, while seeking relief in the present

case, has mostly relied on the Hon’ble APTEL’s judgment dated 14.11.2013 in the Appeal

No. 231 of 2012 (JSL Vs DHBVN) as well as this Commission’s Order dated 26.04.2012.

The relevant part of these Orders, as cited by the Petitioner, have already been

reproduced in the present Order, hence the same are not being repeated here. The

Commission has perused the Judgment (supra) relied upon by both the parties i.e. the

Petitioner as well as the Respondents and observes that the Petitioner has culled out a

paragraph from the APTEL’s judgment dated 14.11.2013 and has not placed the entire

judgment including the prayer of the party before it and issues framed by the Hon’ble

APTEL on which the judgment was rendered. Per Contra the Respondents, while alleging

that the present Petition is misleading to that extent, has attempted to put the said

judgment in a proper perspective. Nonetheless, the Commission has carefully perused the

Hon’ble APTEL’ judgment in the Appeal No. 231 of 2012 and observes as under:-

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The issue, as framed by the Hon’ble APTEL, and the findings thereto are

reproduced below:-

“v) Has the State Commission violated the principles of natural justice in

amending the tariff of LT consumers (emphasis added) by way of suo motu

clarification by a subsequent communication dated 4.10.2010 imposing monthly

minimum charges?”

Further, the Hon’ble APTEL while deciding the matter as set out above, had

relied on their judgment dated 11.8.2011 in Appeal No. 204 of 2010 in Faridabad

Industrial Association Vs Haryana State Commission. The said judgment was also perused

by the Commission. The relevant part of the judgment is as under:-

“10.5. According to learned counsel for the respondents 2 & 3, the

clarificatory order was a correction of an error apparent on the face of

records. We do not agree with the contention of Respondent no. 2 & 3. The

State Commission has also contended that monthly minimum charges were

inadvertently left out in the impugned order. Admittedly, the monthly

minimum charges for LT industry prior to the impugned order were

Rs. 120/- per kW. However, in the clarification issued on 4.10.2010,

the same has been enhanced to Rs. 240/- per kW (emphasis added).

Thus, the State Commission without providing an opportunity to hear the

concerned parties has amended the tariff for LT consumers. This is against

the principles of natural justice and provisions of Sections 64(3) and 86(3)

of the Electricity Act, 2003. The Judgment of Hon’ble Supreme Court

referred to by the learned counsel for the Respondents 2 and 3 is not

relevant to the present case. The State Commission may hear the concerned

parties and pass a reasoned order in this matter which shall be applicable

prospectively. Till then, the Monthly Minimum charges as applicable to LT

consumers’ up to 20 kW load prior to the date of the impugned order shall

continue”.

A plain reading of the ibid judgment makes it clear that the said clarification

given by the Commission was set aside due to the fact that MMC for LT industry was

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Rs. 120/- per kW and the same vide clarification issued on 4.10.2010 was enhanced to

Rs. 240/- per kW. However, in the present case no such change/enhancement was made

by the Commission in the impugned clarification.

As distinguishable from the above, in the present case the impugned

clarification issued by this Commission did not touch upon the merit of the case and the

same was issued in the interest of justice as held by the Hon’ble Supreme Court in

Ramchandra Singh Vs. Savitri Devi and Others (2004) 12 SCC 713. Thus, the ratio of the

Judgments of the Hon’ble APTEL in Appeal No. 231 of 2012 and Appeal No. 204 of 2010

are not applicable in the present case as the same are clearly distinguishable on facts.

Further, while seeking relief in the present case, the Petitioner has relied upon the

Commission’s Order dated 26.04.2012 i.e. that the Commission shall not respond to any

such application / pleading from the power utilities / stakeholders which are not filed in

accordance with the laid down procedure. Hence, the Petitioner has contended that the

clarification dated 5/8.06.2015 is in violation of the Commission’s own Order dated

26.04.2012.

Per Contra the Respondents have argued that Additional Surcharge is one of the

elements (under income / receipt head) for determination of tariff. Further, Regulation 63

of the ibid Regulations provides that the Additional Surcharge is to be determined as per

HERC Open Access Regulations, 2012. Regulation 63(3) further provides that the Discoms

shall submit along with ARR, requisite calculation for determination of cross subsidy

surcharge and additional surcharge and these charges as determined by the Commission

shall be payable as determined by the Commission “from time to time”.

Additionally, the Respondent herein cited several judgments interpreting the

phrase “from time to time” as enshrined in the Commission’s MYT Regulations, 2012.

Accordingly, the Respondents argued that the Commission is empowered to determine

Additional Surcharge as and when occasion arises and not necessarily on six monthly

basis.

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The Commission observes that as far as interpretation of the phrase “from time to

time” is concerned the matter stands settled by the judgments cited by the Respondents.

However, the same is not germane to the present case before this Commission. It is an

admitted fact that as on the date of issuing the impugned clarification the process of

determining Additional Surcharge applicable for the FY 2015-16 was under consideration.

Hence, given the fact that till the time the Commission, based on voluminous data

involved, determined the Additional Surcharge applicable for the FY 2015-16 and the fact

that the PPAs continued to remain stranded for one reason or the other including due to

the Open Access Consumers there would have been a vacuum leading to lower revenue

realizations for the Discoms. This, at some stage would have been passed on (partly or

wholly) to all the electricity consumers of the State. Thus, the Commission in the interest

of justice and on the letter written by the FIA, issued the impugned clarification.

While issuing the impugned clarification the Commission was convinced that the

Additional Surcharge also flew from the Order of the Commission determining the ARR /

Tariffs of the Discoms including source wise power to be purchased by the Discoms;

consumer category-wise sales including inter-State sales etc. Hence, the Commission

considered it appropriate to issue the said clarification levying the Additional Surcharge

as determined by its Order dated 29th May, 2014 till the time the same was revised /

amended.

In the considered view of the Commission the said Additional Surcharge @ 50

Paise / Unit, as also recorded in the ibid Order, was only about 50% of the Additional

Surcharge proposed by the Discoms based on data filed by them. Further, given the clearly

discernible trend in power being drawn by the Open Access Consumers and the power

being surrendered by the Discoms, the ibid additional surcharge @ 50 Paisa/Unit was the

minimum acceptable levy due to data limitations at that point.

The same erred more in the favour of the Open Access Consumers rather than the

Discoms. Thus, there was no occasion or legal requirement for the Commission to direct

FIA to file a Petition for seeking clarification on the levy of Additional Surcharge.

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Such a Petition would have become essential in view of the Commission’s Order

dated 26.04.2012 in case there existed any doubt in its mind regarding continuation of the

Additional Surcharge as determined vide its Order dated 29th May, 2014 till the time the

same is revised / amended or discontinued.

Additionally, the Commission observes that a major portion of the proceeds of the

Additional Surcharge from the short – term Open Access Consumers is utilized towards

reducing the ARR of the Discoms and tariff(s) payable by the electricity consumers in

Haryana thereto. Hence, any vacuum left in the interim period from 1st April, 2015 till the

time Additional Surcharge for the FY 2015-16 is determined de -novo, would tantamount

to avoidable burden on the electricity consumers in the State in general and an unjust

gains to a few Open Access Consumers who are using the Open Access mechanism by

striking a trade-off between “Discoms power” and “power brought from outside for

commercial gains”.

Thus, given the iniquitous situation between the large number of electricity

consumers in general and a few Open Access Consumers, the Commission issued the

impugned clarification which was in the interest of justice and in the nature of a

reiteration of the obvious facts flowing from the relevant statutes / Regulations as well as

the Commission’s Order dated 29th May, 2014.

In view of the above discussions the Commission holds that the impugned

clarification issued by the Commission and the subsequent Sales Circular issued by the

Respondents suffers from no legal infirmity.

The Petition is accordingly disposed off.

This order is signed, dated and issued by the Haryana Electricity Regulatory

Commission on 10th November, 2015.

Date: 10.11.2015 (M.S. Puri) (Jagjeet Singh) Place: Panchkula Member Chairman