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MERC Order [ Case No.50 of 2012] of 67

Before the

MAHARASHTRA ELECTRICITY REGULATORY COMMISSION

World Trade Centre, Centre No. 1, 13th

Floor, Cuffe Parade, Mumbai - 400 005

Email: [email protected]

Website: www.mercindia.org.in /www.merc.gov.in

Case No. 50 of 2012

IN THE MATTER OF

Suo Motu Proceedings on the ‘Issues on Open Access’ for solicitation of views and

suggestions from the members of Public and all Stakeholders in the State of

Maharashtra, regarding the action suggested vide Letter dated 30 November , 2011 of

the Ministry of Power on operationalisation of Open Access (1 MW and above

consumers) in Power Sector

Shri V. P. Raja, Chairman

Shri Vijay L. Sonavane, Member

Dated: 2 January , 2013

1. The Ministry of Power, Government of India, vide its letter dated 30 November ,

2011, has inter alia requested all Electricity Regulatory Commissions that necessary

steps for implementing the provisions relating to Open Access under the Electricity

Act 2003 (hereinafter referred to as ‘Act’ or ‘EA 2003’) be intiated based on the

opinion from M/o Law and Justice on Opetainalisation of Open Access in Power

Sector.

2. The Commission issued a Public Notice, dated 18 May, 2012, pursuant to the letter

from Ministry of Power, seeking written comments on the issues of Open Access and

other relevant issues from the members of Public and from all Stakeholders in the

State of Maharashtra.

3. In the Public Notice issues were identified in light the of the opinion from M/o Law

which are as under :

mailto:[email protected]

http://www.mercindia.org.in/

http://www.merc.gov.in/


a) As per the provisions of the Act, bulk consumers (above 1 MW) shall be

deemed to be Open Access consumers with effect from January 2009, in terms

of the proviso to Section 42(2);

b) Once a consumer becomes an Open Access consumer, the State Commission

can no longer fix the energy charges to be paid by such a consumer, but will

continue to fix the wheeling charges and surcharges in accordance with the

provisions of the Act;

c) An analysis of the various provisions of the Act (particularly Section 49)

shows that if certain consumers want to have the benefit of the option to buy

power from competing sources, then it is logical that DISCOMS/Distribution

Licensees do not have an obligation to compulsorily supply power to such

consumers. If such consumers want power from the DISCOM, then the terms

and conditions of the supply would be determined in terms of section 49;

d) A notice under Section 42(3) is not a precondition for the implementation of

Open Access as such a notice is not for seeking permission to use the

distribution licensee’s network, but only to communicate the Open Access

consumers’ intention of using such a network.

4. A Public Hearing in the present Case No. 50 of 2012 was held on 12 October, 2012

vide Public Notice dated 18 August, 2012 published in English news papers viz Times

of India and DNA and in Marathi news papers viz Sakal and Maharashtra Times.


Organisation of the Order

1. Summary of Suggestions: ................................................................................................ 5

1.1 Prayas Energy Group (PEG) – ( Consumer Representative ) .................. 5

1.2 Thane Belapur Industries Association (Consumer Representative) ........ 7

1.3 Vidarbha Industries Association (Consumer Representative) ................. 7

1.4 Maharashtra State Electricity Distribution Company Ltd. ...................... 8

1.5 Tata Power Distribution Company Ltd. (TPC-D).................................. 13

1.6 Brihan Mumbai Electric Supply and Transport Undertaking (BEST)... 16

1.7 Essar Power Ltd. (Essar) ........................................................................ 16

1.8 General Carbon Advisory Services Pvt. Ltd. (GCAS) .......................... 18

1.9 Indian Wind Power Association(IWPA) ............................................... 20

1.10 Gensol Consultants Pvt. Ltd. (Gensol) .................................................. 21

1.11 Maharashtra Veej Grahak Sanghatana (MVGS).................................... 22

1.12 Bharatiya Udhami Avam Upbhokta Sangh (BUAUS) .......................... 22

1.13 Central Railways .................................................................................... 23

1.14 Tata Motors Ltd. .................................................................................... 24

1.15 Enercon India Ltd. (Enercon) ................................................................ 24

1.16 Maharashtra State Load Despatch Centre (MSLDC) ............................ 25

1.17 Mahindra & Mahindra Ltd. (M&M) ...................................................... 26

1.18 Indian Energy Exchange ........................................................................ 27


1.19 Shri. N.Ponrathnam ................................................................................ 28

1.20 Shri. Aditya Bedekar .............................................................................. 28

1.21 Shri. Vinod Manikchand Shrishrimal .................................................... 29

1.22 Shri. D. Radhakrishna ............................................................................ 29

1.23 Shri George John.................................................................................... 29

1.24 Mahratta Chamber of Commerce, Industries And Agriculture (MCCIA)29

1.25 Finolex Industries Limited (FIL) ........................................................... 30

1.26 Maharashtra State Electricity Transmission Company Ltd. (MSETCL)30

1.27 Captive Power Producers Association (CPPA) ..................................... 31

1.28 Bajaj Finserv Ltd. (BFS) ........................................................................ 31

1.29 UltraTech Cement Ltd. .......................................................................... 32

1.30 Reliance Industries Ltd. (RIL) ............................................................... 33

2. COMMISSION’S RULINGS ........................................................................................ 35


1. SUMMARY OF SUGGESTIONS:

5. The Commission has received twenty nine (29) written comments/suggestions from

various stakeholders including three (3) consumer representatives. Besides, one (1)

written suggestion was received post Public Hearing. The list of the persons who

partcipated in the Public Hearing is attached as Annexure–I to this Order. The

Commission noted that there are some suggestions on the issues as a part of the

proceedings which are not directly related to the questions raised in the Public Notice,

viz., reduction in Contract Demand, etc., and same has not been considered as a part

of this Order. Brief details of the submissions made by various stakeholders are

summarised in the following paragraphs:-

1.1 Prayas Energy Group (PEG) – ( Consumer Representative )

6. Ms Ashwini Chitnis, appeared on behalf of Prayas Energy Group (PEG), an

authorised Consumer Representative. She submitted that the 2003 Act envisages

Open Access mechanism as the direction of increasing role of competition and

markets in the Power Sector. PEG submitted that there is a need to calibrate the

introduction of Open Access mechanism so as to take care of interests of small

consumers.

7. PEG suggested that the Commission may consider the following factors before

implementing Open Access mechanism:

a) Economic rationale: The mechanism should make economic sense for both

Open Access as well as the rest of the Distribution Licensee’s consumers.

b) Well rounded/holistic interpretation of legal and policy mandate: Policy

changes should not lead to reduction in cross subsidies causing tariff shock for

small consumers. However, good quality of service for all consumers needs to

be ensured by Distribution Licensee.

c) Principles of market mechanism: Open access consumers should accept

both risks and rewards of the market mechanism.


d) Operational transparency and accountability: There is a need to adopt

advance metering and billing mechanisms to ensure transparency and

accountability of Distribution Licensee in its transactions with deemed Open

Access consumers.

8. PEG also suggested approaches that can be adopted by the Commission in the

implementation of Open Access as given below:

a) Separation in ARR and business plans: In the filing of Aggregate Revenue

Requirement (ARR) process or Business Plan of any Distribution Licensee, all

the deemed Open Access consumers should be separated from the rest of the

consumers.

b) Obligation to serve non-Open Access consumers on priority: The licensee

should be obligated to meet the demand of its non Open Access consumers on

priority.

c) Separate tariff category for deemed Open Access consumers: A separate

tariff category should be created for all deemed Open Access consumers. The

tariff for this category should include a premium in addition to cross-subsidy

surcharge and wheeling charge. Premium might be calculated based on the

stand by support and better supply service quality enjoyed by these consumers.

d) Contracts with deemed Open Access consumer: Any deemed Open Access

consumer who do not opt for Open Access may be asked to sign at least one

(1) year contract with the Distribution Licensee for this purpose. If any Open

Access consumer who has not signed contract but wants to avail supply from

Licensee may be charged higher tariff comparable to temporary charges.

e) Metering and billing of all Open Access consumers: All Open Access

consumers (deemed or otherwise) may be mandated to install Special Energy

Meters (SEMs).

f) Regulations for monitoring Intra-State Power Trading: The Commission

may like to issue Regulations for monitoring intra-State Power trading.

g) Intra-state transmission pricing framework: There is a need to expedite

implementation of Final Balancing and Settlement Mechanism (FBSM) for

energy accounting and settlement on 15-minute basis under intra-State ABT

regime.


h) Finalise Transmission and Distribution Open Access Regulations: The

Commission may like to modify the proposed draft Regulations for

Transmission and Distribution Open Access 2011 and fresh round of Public

Consultation process should be undertaken to finalise these draft Regulations.

1.2 Thane Belapur Industries Association (Consumer Representative)

9. Dr Ashok Pendse, appeared on behalf of Thane Belapur Industries Association

(TBIA), an authorised Consumer Representative and submitted that:

i. The concerns of MSEDCL that there would be loss amounting to Rs. 5580

Crore on account of granting Open Access to 1 MW and above consumers

may not be entirely true. As even with zero CSS, till date only three (3)

consumers have co-opted for Open Access namely Lavasa (2 MW),

Maharashtra Electro Smelters Ltd.(3 MW) and Indorama (10 MW), out of

9000 MW.

ii. MSEDCL should reduce the high cost of power purchase and load shedding in

Districts and Tahasil areas.

iii. There would be net savings to MSEDCL by allowing Open Access to the

consumers.

1.3 Vidarbha Industries Association (Consumer Representative)

10. Shri R.B.Goneka, appeared on behalf of Vidarbha Industries Association (VIA), an

authorised Consumer Representative, and submitted that:

i. Determination of tariff for Open Access consumers except the wheeling

charges is not within the jurisdiction of the Commission.

ii. Consumers with load of one (1) MW and above should be considered as

deemed Open Access consumers. Small consumers who are not able to

arrange electricity to meet their requirements from open market or power

producers need to approach Distribution Licensee and shall pay according to

the tariff determined by the Commission.

iii. Cross-subidy surcharge (CSS) is not payable by Open Access Consumers, as

they are not consumers of Distribution Licensee and similarly Distribution


Licensee also do not have Universal Service Obligation (USO) for consumers

having load more than one (1) MW.

iv. Difficulties in implementation of Open Access in the State regarding

availability of ABT meters, proper infrastructure at SLDC and NLDC to

handle large Open Access Consumers, etc., needs to be looked into.

11. VIA presented its calculations for estimating impact of implementation of Open

Access on revenue of Maharashtra State Electricity Distribution Company Ltd.

(MSEDCL), based on certain assumptions and submitted that MSEDCL would gain

on account of allowing Open Access.

1.4 Maharashtra State Electricity Distribution Company Ltd.

12. MSEDCL summarised its suggestions under six broad issues which are as under:

Issue No-I :- Nature of declaration/direction contained in MoP letter

13. MSEDCL submitted that the MoP letter:

a) is ultra vires’ the 2003 Act and not based on any Authority of Law;

b) seeks to interfere in the Commission’s performance of statutory obligations in

accordance with the 2003 Act;

c) is, in any event, contrary to the express provisions of the 2003 Act; and

d) does not bind the Commission in any manner.

14. MSEDCL further submitted that:

a) the MoP letter is not in nature of a request or suggestion, but in the nature of a

direction or declaration, which purports to take effect immediately;

b) No reference of provision of law has been provided under which it has been

issued as there exists no such provision;

c) Under Section 42(2) of Act, it is the Commission’s exclusive statutory

obligation to introduce Open Access and that the 2003 Act does not envisage

the exercise of this obligation by the MoP, either directly or indirectly;

d) Section 86(4) of the Act mandates State Commission in discharge of its

functions, to be guided by National Electricity Policy, National Electricity


Plan and Tariff Policy. The MoP letter is neither a part of the three mentioned

policies/plan and cannot seek to interfere in the Commission’s performance of

its statutory obligations in accordance with the law.

e) MoP letter neither makes nor purports to make rules as contemplated in

exercise of powers under Section 176 of the Act.

f) The State Commission has to be guided by the State Government under

Section 108 of the Act. MoP, GoI cannot issue directions to the Commission

either directly or indirectly.

g) MoP letter cannot be even legally interpreted as an order under Section 183 of

the Act. MoP letter purports to make declaration/decision which is contrary to

the express provision of the Act, as it has been issued more than 2 years after

date of commencement of the 2003 Act and does not satisfy the other

procedural requirements.

h) The Commission has fully discharged its statutory obligations to implement

Open Access, as per provisions of Act by framing Maharashtra Electricity

Regulatory Commission (Distribution Open Access) Regulations, 2005.

Issue No-II :- 1 MW and above are Deemed Open Access Consumers

15. MSEDCL submitted that :

a) The State Commission is obliged to provide Open Access to all consumers

who require it and expressly opt for such Open Access to all consumers “who

require” the supply of electricity of 1 MW and above. The fifth proviso to

section 42 of the Act, i.e., reads as under:

“ Provided also that the State Commission shall, not later than five years from

the date of commencement of the Electricity (Amendment) Act, 2003 by

Regulations, provide such Open Access to all consumers who require a

supply of electricity where the maximum power to be made available at any

time exceeds one megawatt.” [Emphasis added]

b) There is no concept of “deemed Open Access” under the Act and the Act does

not mandate any specific category of consumers to be automatically “deemed”

Open Access consumers.

c) Conjoint reading of various provisons of the Section 42(2) of the 2003 Act

leads to the conclusion that the State Commission is obliged to provide Open


Access to all consumers who require it and who expressly opt for such Open

Access, and not to automatically treat each and every consumer who needs

more than 1 MW of electricity as an Open Access consumer.

d) Reading a “Deemed fiction” in to the provisions of Act would render words

contained in Section 42(2) of the Act“in specifying the extent of Open Access

in successive phases and in determining the charges for wheeling, it shall have

due regard to all relevant factors including such cross subsidies, and other

operational constraints:” and specific requirement of notice under Section

42(3) of Act, completely irrelevant and otiose.

e) Section 42(3) of the Act requires a formal notice to be sent by Open Access

consumer which contradicts “deemed Open Access” concept.

f) The Commission has discharged its statutory obligations to provide Open

Access to consumers having load of 1 MW and above, who require a supply

of electricity, by framing Maharashtra Electricity Regulatory Commission

(Distribution Open Access) Regulations, 2005.

g) Regulation 3 of MERC (Distribution Open Access) Regulations, 2005

specifically states that this Regulation has been framed by the Commission in

discharge of its obligation under Section 42 of the Act.

16. MSEDCL summarised by submitting that the MoP letter erroneously declares /directs

that all consumers who require supply of electricity in excess of 1 MW, will be

“Deemed Open Access”.

Issue No-III:- Whether the State Commission can fix tariff for Open Access

Consumer?

17. MSEDCL submitted that the once an eligible Open Access consumer, i.e., a consumer

whose consumption of electricity exceeds 1 MW, opts or avails for Open Access in

terms of the Electricity Act 2003 and the relevant Regulations made therein, then

under the proviso to Section 86(1)(a), the State Commission will not have the

jurisdiction to determine tariff for those consumers who have actually migrated to the

Open Access regime.


18. The entire scheme of the Act as envisaged read along with Sections 49 and 86(1) (a)

gives rise to interpretation that tariff fixation is to be gradually phased out in line with

phasing of Open Access.

19. Interpretation of words “a category” and “the said category” used Section 86 (1) (a)

of the Act, refers to all consumers who are eligibile for Open Access and those who

have already migrated to Open Access regime, resepectively.

20. The consumers who do not opt to avail or exercise their right to avail Open Access

will continue to be regulated by the Commission.

Issue No-IV:- Where consumer have an option to procure electricity from

competing sources, then terms of Supply from Distribution Licensee to be as per

Section 49 of Act.

21. MSEDCL opines that the opening words of the section 43 “Save as otherwise

provided in this Act”, imply that there are exceptions to the obligations. These

exceptions are the ones contained in the Section 42(2) dealing with Open Access.

22. MSEDCL submitted that the categories entitled to Open Access have been carved out

from the Universal Service Obligation in the Act. MSEDCL submitted that once a

category becomes entitled to Open Access, distribution licensee is released of its

obligations under Section 43.

23. Being a free market phenomenon the Distribution Licensee is released from any

binding obligations to provide stand-by power etc., except as may be agreed between

the parties through agreements in terms of Section 49 of the Act.

Issue No-V:- Notice under Section 42(3) is not a precondition for implementation

of Open Access- Notice is not for seeking permission to use distribution

Licensee’s network but only to communicate intention of using such network.

24. MSEDCL submitted that:

a) Suggestion from MoP would lead to immediate collapse of grid, as Open

Access is always subjected to availability of transmission capacity and various

other parameters to have stable grid frequency.


b) The consumer has to comply with the Provisions of the MERC Distribution

Open Access Regulations, 2005 framed by the Commission for seeking Open

Access.

c) MERC Distribution Open Access Regulations, 2005 provide for a

comprehensive procedure for all concerned , i.e., the Open Access consumer,

the Distribution Licensee and Generating Company, for implementation of

Open Access in the State as per the Provisions of the Act.

d) Tri partite-Connection and use of Distribution System Agreement which is

binding on all concerned.

Issue No-VI:- Technical and Operational constraints in implementing directives

of MoP letter

25. MSEDCL submitted that the interpretation of the Act in line with the letter from MoP

would raise various technical and operational issues. Some of the key points are

summarised below:

i. Open Access consumers need to comply with the various provisions of the MERC

Distribution Open Access Regulations, 2005 regarding eligibility criteria,

reduction of contract demand, execution of connection, installation of Special

Energy Meters, wheeling charges, payment of cross subsidy surcharge, etc.

ii. Open Access cannot be permitted beyond the contracted demand capacity of the

consumer in order to ensure reliable operation and safety of the system. Thus, the

prevalent practice of Open Access permission to be given by Distribution

Licensee after receipt of application from Open Access consumer should be

continued.

iii. The type of Open Access consumer whether captive or not needs to be ascertained

by the Distribution Licensee prior to giving permission as it is linked to payment

of CSS.

iv. All Open Access consumers may not be well versed with the procedures of Open

Access, scheduling of power and other activities. Due to absence of such expertise

and reassurance of continuous power from MSEDCL, it will be beneficial for

certain consumers to continue with MSEDCL. However, they have to follow the

Open Access procedures as determined by the Commission.


v. Bulk Consumers might need separate feeders for reliable power supply, for which

MSEDCL may assist in setting up infrastructure for them.

vi. Installation of SEM/ABT meters by all consumers above 1 MW. Intra State ABT

would be applicable to all Open Access consumers.

vii. Need for proper mechanism to ensure coordination between all concerned

Distribution Licensee, State Transmission Utility, Open Access Consumer,

Generator, Load Despatch Centres at various levels, etc.

viii. In case of failure of Open Access generator, SLDC must direct concerned host to

limit its load to that extent in order to ensure smooth grid operation. Such real

time communication is not available for Open Access consumers with SLDC

currently.

ix. Clarity required on the recovery of expenditure, due to creation of infrastructure,

incurred by MSEDCL for new consumer who after availing MSEDCL's supply

opts for Open Access.

x. There would be huge revenue loss due to migration of consumers (1 MW and

above) as they are subsidising consumers for consumers with less financial

potency. The effect of such migration would result in increase in tariff.

xi. Clarity required as to whether Distribution Open Access Regulations will be

applicable to those consumers who source power from the source other than

Distribution Licensee.

xii. Existing MERC Distribution Open Access Regulations, 2005 do not provide Open

Access transactions through Exchanges and it must be included in the upcoming

Open Access Regulations.

xiii. In case of overdrawl by Open Access consumer from the State Grid should be

treated as stand by supply. There must be simple billing methodology and

software program needs to be developed for Open Access transactions.

1.5 Tata Power Distribution Company Ltd. (TPC-D)

26. TPC-D has commented upon two of the issues mentioned in the Suo motu notice of

the Commission, which are as under:


Issue No-I :- 1 MW and above are Deemed Open Access Consumers

27. TPC-D submitted that:

a) As per Section 62 that deals with determination of tariff, there is no

differentiation provided between consumer having load of 1 MW or otherwise.

b) Choice of availing supply on Open Access is addressed under proviso 5 of

Section 42(2) of the Act.

c) Section 49 of the Act provides that the Open Access is given as a choice to the

consumers having load above 1 MW and not a compulsion. The term “may”

used in the Section 49 supports the view that Open Access is “Choice” not a

“Compulsion”.

28. TPC-D inferred from the above that the Act does not envisage a deemed Open Access

consumer.

Issue No-II :- Where consumer have an option to procure electricity from


Section 49 of Act.


a) In India the Connectors and Suppliers are the same (except Mumbai only

location to have Parallel Licensees). The obligation cast under Section 43 of

the Act can be met only through connection to consumer.

b) For giving supply to consumers, it is necessary to connect the distribution

network to the consumers and hence the USO effectively means connect and

supply.

c) Interpretation that the Distribution Licensee is obliged to supply power to the

consumer at negotiated terms to comply with Section 60 of the Act and to

avoid market dominance by the Distribution Licensee. The Distribution

Licensee may not be in a position to reject supply of power to the consumers

as long as the negotiated terms are agreed between the parties.


Implementation Issues


a) Partial Open Access to consumers should not be allowed and in case if such

consumers wish to procure power on Open Access to meet part of their load

then this should be done through bifurcating the consumers premises and load

into two separate consumers through separate meters.

b) Additional surcharge due to fixed charges paid by Distribution Licensee's

needs to be recovered from all the Open Access consumers, otherwise it will

lead to undue burdening of existing less than 1 MW consumers of Licensee.

These charges need to be paid till the time Distribution Licensee is obligated

to its existing Power Purchase Agreements.

c) There is decrement in load even below the Technical Minimum Generation

levels for a short period of 1 to 2 hours of Mumbai during Night hours

especially in Winter Season and if large number of Open Access consumers

move out, it would result in drop of load below Technical Minimum

generation for longer durations. Generators will continue to produce power

during this time as they are already at Technical minimum generating levels.

The same effect has been plotted by the TPC is as shown below:

0

500

1000

1500

2000

2500

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

M

W

H

Time Period

Mumbai Area Load Curve for Winter

Normal Winter Load curve for Mumbai

Assuming 10% drop in demand as OA consumers move out

Technical Minimum Generation for Mumbai


d) Distribution Licensee may declare Day-ahead (Spot Prices) as an alternative to

stand-by power for the consumers who are not able to tie up power on short-

term basis.

e) The Commission needs to specify Distribution Grid Code and should provide

‘DISCOM Load Management Centres’ with necessary powers for

implementing suitable disciplinary actions for repeat/regular offenders whose

actions lead to grid imbalance. Wheeling charges to be levied as per tariff

orders while surcharge can be levied as appropriate and provided for in the

Act.

1.6 Brihan Mumbai Electric Supply and Transport Undertaking (BEST)

31. BEST submitted that:

a) It is exempted from providing Distribution Open Access to its consumers.

b) All consumers having load of 1 MW and above, do not become mandatorily

distribution Open Access consumers, unless such consumers specifically opt

for such distribution Open Access under the MERC Distribution Open Access

Regulations, 2005.

c) Universal Service Obligation under Sections 43(1) and 42(1) of EA 2003 is

not negated or overridden by Section 49 of the EA 2003. BEST submits that

said Sections 43(1) and 42(1) of the Act are substantive and mandatory,

whereas, said Section 49 of the Act is enabling and discretionary.

d) Proviso to Section 86(1)(a) of the Act read with Section 42 of the EA 2003

provides that the Commission is necessarily required to determine only the

wheeling charges and surcharge thereon.

1.7 Essar Power Ltd. (Essar)


32. Essar submitted that:

a) All consumers of 1 MW and above should be deemed to be Open Access

customers, unless these users are getting power only from the CPP/CPPs


(Captive Power Plants) and/or GCP/GCPs (Group Captive Plant) through their

own transmission line / cables.

b) Section 42 (2) of the Act casts obligation on the State Commission to

introduce Open Access to the distribution network in phases. By amendment

dated 27 January, 2004 to the Electricity Act, 2003, it is provided that State

Regulatory Commission shall provide Open Access to all consumers who

require supply of electricity where the maximum power to be made available

at any time exceeds one megawatt, not later than five years from the date of

commencement of the Act.

Issue No-II :- Whether the State Commission can fix tariff for Open Access

Consumer?

c) Regulatory Commission shall determine only Transmission and Distribution

charges and losses payable by Open Access consumers to get its power

requirement from generation sources and energy charges for such Open

Access customers shall not be determined by the Regulatory Commission.

Issue No-III :- Where consumer have an option to procure electricity from


Section 49 of Act.

d) Section 43 (1) of the Act casts obligation to supply on Distribution Licensees

to supply power to consumers on demand of its license area. However, when a

consumer is procuring power from other source under Open Access, it shall

not procure power from Distribution Licensee of the area and hence

Distribution Licensee of the area has no obligation to contract power for such

consumers.

e) Further, Open Access consumers have freedom to contract power from

competing sources and one of such competing source is the distribution

licensee of the area. As consumer enters into agreement with other source for

procuring power under section 49, similarly Open Access consumer shall enter

into agreement with Distribution Licensee of the area for procuring power and


under such circumstances, the terms and conditions of the supply would be

determined in terms of Section 49.

Issue No-IV:- Notice under Section 42(3) is not a precondition for

implementation of Open Access- Notice is not for seeking permission to use

distribution Licensee’s network but only to communicate intention of using such

network.

f) Essar submitted that Section 42 (3) provides for the responsibility of the

Distribution Licensee of the area to allow usage of its network as common

carrier allowing non-discriminatory Open Access. Notice provided in such

case, is just procedural to provide that the consumer will have to inform

distribution licensee of the area its intention to make use of its network.

1.8 General Carbon Advisory Services Pvt. Ltd. (GCAS)

33. GCAS submitted that issues in operationalising of Open Access for all bulk

consumers as given below:

a) Capacity building at SLDC: Does SLDC have the necessary technology,

expertise, manpower to handle such large number of Open Access approval

requests.

b) Ring-fencing of SLDC: SLDC would have to be impartial when executing its

authority of scheduling Open Access requests. It should not gravitate towards

government controlled distribution licensees. For this reason, control of

Distribution Licensee and SLDC should be segregated.

c) Cross Subsidy Surcharge: In Act, it was mandated to progressively reduce

cross subsidy surcharge. It was to be contained within limit of +/- 20% by

2011. However, this has not been achieved until now. It would be a great

dampener for bulk consumers if they have to pay high cross subsidy

surcharge.

d) Wheeling Capacity: For the purpose of Open Access only spare capacity by

inherent design margin and variation in power flow is available for Open


Access. This does not assure Open Access consumer for continuous supply. It

is a big concern in putting mandatory Open Access in practice.

e) Rationalisation of Open Access charges: Cost for wire business and power

supply business should be properly segregated so as to arrive at a consistent

wheeling charge. Wheeling losses should be calculated only corresponding to

technical losses and must exclude commercial losses as most of the bulk

consumers are connected at 11 kV and above, whereas most of the

commercial losses occur at below 11 kV level.

f) Standby Power Charges: The Commission should try to arrive at a optimum

standby Charges which should not act as an impediment to companies going

for Open Access from sources other than Distribution licensee and at the same

time should discourage liberal use of standby power of Distribution Licensee.

g) Availability of Non Bonded Power: There should be availability of power

which has not been committed for long term PPA. Since most of the

generators have tied up their power on long term basis with the Distribution

Companies, a very limited capacity is available for merchant transactions. If

availability of non-bonded power does not materialise it would completely

distort demand supply equation in favour of power producer and will put

undue pressure on Open Access consumers. If Discoms are not obligated to

supply power to bulk consumers, they will have huge amount of excess

capacity and thus will monopolies the market as major sellers of power.

h) Futures trade- Power exchange: In the absence of possibility of longer

period transactions (i.e. month ahead / half yearly / yearly / etc.), the bulk

consumers of power may not be able to plan their long term requirements.

Until longer period transactions are materialised, the bulk consumers would

have limited options and consequently would have to face the uncertainty of

power prices.


1.9 Indian Wind Power Association(IWPA)


34. IWPA submitted that a conjoint reading of Sections 38, 39, 40 and 42 shows the need

to provide Open Access to consumers who exercise their right to get electricity from

both the Distribution Licensees as well as other than Distribution Licensees for

meeting their total requirement and there is no provison of consumers having load of

1 MW and above consumers to be deemed to be Open Access consumers.


Consumer?

35. IWPA submitted that:

a) the Act is unambiguous in dealing with the functions of State Commission as is

enshrined in Section 86 of the Act.

b) And if the interpretation as given in MoP letter is taken and the Distribution

Licensees are enthrusted with the responsibility of deciding the tariff, it might

lead to total breakdown of Open Access process in the State and further would

lead to multitude of disputes between the Distribution Licensees and the

consumers.

c) Further, the Commission would remain a mute spectator in the event of unfolding

in administration of Open Access regime in the State especially when it is deemed

that it has no role but only the duty to fix wheeling and transmission charges and

loss.



Section 49 of Act.

36. IWPA submitted that:

a) Sections 43 and 44 of the Act provide for statutory mandate of Distribution

Licensee to supply electricity subject to payment of charges approved by the

Appropriate Commission.


b) APTEL judgement dated 11 July, 2006 and Order of Rajasthan Electricity

Regulatory Commission on 24 July, 2012, both provides that the Distribution

Licensee has obligation to supply on request to all consumers.

1.10 Gensol Consultants Pvt. Ltd. (Gensol)


37. Gensol submitted that all the consumers with connected load of 1 MW and above are

deemed to be Open Access consumers, in a sense that they have the freedom to

procure power through Open Access, by paying the requisite surcharges as stipulated

by the appropriate Commission.


Consumer?

38. Gensol submitted that for the consumers who avail Open Access the Commission's

jurisdiction would be limited to determining only the wheeling charges and

surcharges and if the bulk consumer wishes to procure power from the local

Distribution Licensee by not opting for Open Access, then the tariff would be

determined by the State Commission.



Section 49 of Act.

39. Gensol submitted that under Section 43 of the Act, the Distribution Licensee is

obligated to supply electricity when requested by the consumer.


1.11 Maharashtra Veej Grahak Sanghatana (MVGS)

40. MVGS submitted that:

a. Mandatory - The interpretation by the Government of India regarding the

implementation of Open Access is mandatory and binding on all Regulatory

Commissions.

b. Consumers - Open Access should be a legal and rightful choice to the

consumers. It should not be a compulsion on the consumers

c. Utilities - There is an obligation on the Utilities to supply power to those

consumers, who do not wish to opt for Open Access.

d. Regulators - In case of the consumers those who are above 1 MW and do not

want to opt for Open Access, the tariff of such consumers should be decided

by the Regulators, and not by the Distribution Licensees. In case of consumers

opting for Open Access, the Regulators should fix only wheeling charge and

other charges/surcharge for such consumers.

e. Operational Constraints- MVGS also submitted various operational

constraints pertaining to Open Access as given below:

1) Open Access should be allowed to those consumers, who are having

express feeders or those who are in MIDC areas to avoid the uncertainty,

meshed network or load shedding problems.

2) ARR and Tariff should be determined by the Regulator considering all

the embedded consumers including the embedded consumers above 1

MW who have not opted for Open Access.

3) SLDC should be independent and impartial to grant Open Access and it

should be strictly observed and exercised by the Regulator.

1.12 Bharatiya Udhami Avam Upbhokta Sangh (BUAUS)

41. BUAUS submitted that the State Commission must introduce Open Access in phases.

42. BUAUS further submitted that the State Commission has to discharge the functions as

enumerated in Section 86 of the Act.

43. BUAUS also submitted that the Distribution Licensee has to allow the consumers to

use its system after the payment of wheeling charges and other charges as determined


by the Commission and also to provide Stand by supply as per the agreement entered

between the parties.

1.13 Central Railways


44. Central Railways submitted that there is no mandatory obligation of Open Access, the

choice remains to the consumers as opined by Solicitor General of India.


Consumer?

45. Central Raliways submitted that it is in agreement with the Attorney General of

India’s opinion as once a consumer becomes an Open Access consumer, the State

Commission can no longer fix the energy charges to be paid by such a consumer, but

will continue to fix the wheeling charges and surcharges.



Section 49 of Act.

46. Central Railways submitted that USO is essential for proper running of train services

in the remote areas of the Country. Without this obligation, power will not be

available for extension of these services.

Issue No-IV:- Notice under Section 42(3) is not a precondition for

implementation of Open Access- Notice is not for seeking permission to use

distribution Licensee’s network but only to communicate intention of using such

network

47. Central Railways submitted that it is in agreement that notice under Section 42(3) is

just to communicate that the Open Access consumers’ intention of using distribution

licensee’s network.


1.14 Tata Motors Ltd.

48. Tata Motors submitted that:

a) Before the Electricity Act, 2003 was enacted and came into force the Distribution

Licensee had an obligation to maintain the distribution lines and system and

supply electricity to all consumers within its area of supply in terms of the

provisions of the Indian Electricity Act, 1910 and the Electricity (Supply) Act

1948.

b) Further, the Distribution licensee is required to maintain tariff as determined under

the provisions of the Act and not by bilateral arrangements. there must not be any

distinction between the supply to consumers having or becoming entitled to Open

Access and consumers not having or not being entitled to the same.

c) Section 43 provides for the Universal Service Obligation and a mandate on the

distribution licensee to supply electricity to the premises within a specified time

on an application made by the owner of the premise requiring such supplies from

the Distribution Licensee. If the intention of the Parliament was to restrict the

USO of the distribution licensee for connection up to 1 MW, the same would have

been expressly and specifically provided for in Section 43 of the Act.

d) As per the inference from Section 42 (2) of the Act gives an option to the

consumers to avail Open Access and not a compulsion to avail such Open Access

and source their power purchase directly.

1.15 Enercon India Ltd. (Enercon)

49. Enercon submitted that:

a) Conjoint reading of Section 42(2) and Section 42(3) of the Act provides a clear

mandate that all consumers who require a supply of electricity where the

maximum power to be made available at any time exceeds one megawatt have a

right to choose their supplier of electricity.

b) As per Section 43 of the Act, USO is the duty of the Distribution Licensee. The

Distribution Licensee has a duty to supply power to the all consumers provided

the consumers pay the charges as specified by the respective Commission.


c) Further, as per Section 43 (2), even if deemed Open Access consumer opts for a

partial supply of electricity from a source of his choice (other than distribution

licensee of his area) the incumbent Distribution Licensee has to provide him

separate supply. However the deemed Open Access consumer has to pay licensee

the applicable tariff determined by the Appropriate Commission.

d) The tariff for all the consumers having load exceeding 1 MW should be

determined by the respective State Regulatory Commissions

1.16 Maharashtra State Load Despatch Centre (MSLDC)

50. MSLDC submitted various implementation issues which are summarised below:

a) Before the commencement of Open Access, proper infrastructure and human

resources should be in place.

b) If Open Access consumers do not take standby power from Discoms, rather they

draw power from Grid in case of failure of their Supplier's Generator. Such power

will flow through UI and many times, system conditions may not permit drawal of

power through UI. There will implication of such drawal of power on

1. Transmission deviation charges by the State.

2. Congestion charges implications on the State.

c) Requirement of proper Monitoring infrastructure (SCADA to be in place.

d) As per CERC (Terms and Conditions for Tariff determination from Renewable

Energy Sources) all non-solar generators below 10 MW and solar generators

below 5 MW are not be subjected to scheduling and UI. However, deviations of

these generators will have impact on State UI. State UI cannot be apportioned to

them, as their deviations will not be captured. This issue will be needed to be

handled in Intra-State ABT mechanism.

e) In the apportionment of State UI charges, Open Access generators are not

covered. In case of FBSM, impact of any deviations of generators (having

contracts with Open Access consumers) will be on State UI. Hence, this would

result in unfair apportionment of State UI charges.

f) In case there is a revision in availability of the generator (having contract with

Open Access consumers), the rescheduling will be intimated to Discoms/SLDC

and its consumers by the generators. It will be the generator’s responsibility to co-


ordinate with its consumers. In case the buyer desires a revision, it will co-

ordinate with the generator only and the generator will issue a revised schedules.

g) In case if there is unavailability or constraints in the Transmission/distribution

network, which may be either at generator, end or consumer end, the schedules

will be suitably revised by the coordinator.

h) SLDC would have no role in scheduling, energy accounting and UI settlement of

these consumers for embedded consumers of Discoms. For un-embedded

consumers of Discoms, such consumers will be treated as “deemed discom” in the

State energy accounting and scheduling and BSM settlement be done by SLDC.

i) There are issues associated with one generator selling power to number of

consumers through Open Access. Scheduling and commercial settlement of such

generator’s energy would be a challenging task whether done by Discoms or

SLDC. Hence, SLDC requested Commission to introduce Open Access in phased

manner.

1.17 Mahindra & Mahindra Ltd. (M&M)

51. M&M submitted that the:

a) As per the Act, Open Access is allowed for consumers having demand above 1

MW, in this view any Discom should grant the Open Access to consumers

immediately whether it is Partial or Full.

b) Consumers should be allowed to choose their suppliers.

c) Present scenario in Maharashtra indicates that there is shortage of power

availability in power of Discom; in this case Open Access is indirectly helping

the Discom to reduce the supply and demand gap. So Open Access should be

encouraged more.

d) Open access will increase competition among Discoms which would lead

them to take steps towards efficient operation and to stay in competition.

e) For partial Open Access, present incentives from Discoms should continue on

consumption utilised from Discoms.

f) The Commission should provide guidelines to encourage Discoms to facilitate

Open access & continue to regulate tariff even if for 1MW consumers


1.18 Indian Energy Exchange


52. IEX submitted that as per the provisions of the Act, Section 42(2) first proviso has

been amended by Sec. 7 (i) of the Electricity Amendment Act, 2007 where the words

“such Open Access may be allowed before the cross subsidies are eliminated on

payment of a surcharge” have been substituted with the words “such Open Access

shall be allowed on payment of a surcharge”.

53. IEX further submitted that as such a deeming intention has been cast upon the Act

with the substitution of the word “may” with the word “shall.” IEX also submitted

that it could therefore be inferred that all such consumers who are eligible to avail

Open Access become deemed Open Access consumers by virtue of the amendment in

the Act. IEX submitted that it is in agreement with the MoP view on this issue.


Consumer?

54. IEX submitted that the consumers of 1 MW and above need to procure power as per

Section 49 of the Act under which they may enter into an agreement with the Discom

for supply or purchase of electricity on such terms and conditions (including tariff) as

may be agreed upon by them. IEX further submitted that the Discom is free to

determine energy rate at which they want to sell their power to such Open Access

consumers. IEX also submitted that the the Commission may issue guidelines in

accordance with Section 45(2) for determination of such energy charges and prescribe

a ceiling rate so that the Open Access consumer will not suffer as the Discoms enjoy a

virtual monopoly in the market.



Section 49 of Act.

55. IEX submitted that the USO under Sec. 43(1) of the Act continues to prevail for all

consumers.


1.19 Shri. N.Ponrathnam

56. Shri. Ponrathnam submitted that:

a) the MoP letter is an opinion not a direction;

b) Standby arrangement for Open Access consumer has to be provided by the

Distribution Licensee;

c) USO is applicable to the Distribution Licensee.

1.20 Shri. Aditya Bedekar

57. Shri Bedekar submitted that:

a) conjoint reading of Sections 42(2), 42(3), 49 and 86 provides that when a

consumer (as defined in Section 2(15)) who's requirement of power is more

than 1 MW (as per proviso 5 to Section 42(2)) and who gives a notice to a

licensee about his intention to opt for Open Access (as per Section 42(3)) and

who may have entered into an agreement with any person for supply of

electricity (as per Section 49) then the distribution licensee is duty bound to

provide non-discriminatory Open Access (as per Section 42(2)) and in such

cases the State Commission shall only determine wheeling charges and

surcharge thereon (as per proviso to Section 86(1)(a)).

b) Open Access is the right or option given by the Act to eligible consumers and

does not make any compulsion on a consumer to buy power from third parties.

So if a consumer finds the tariff of a licensee (determined by the State

Commission) beneficial than sourcing power from third parties he may not

exercise the option of Open Access.

c) To bring competition in the electricity market there must not be forcing of

eligible consumers to scout for the supplier in the open market as this may

lead to cartelization and undue harassment by the local distribution licensee.

To make electricity market conducive for competition, wire and supply

businesses need to be separated, cross subsidy surcharge needs to be

rationalized and Open Access procedure needs to be made easy.


1.21 Shri. Vinod Manikchand Shrishrimal

58. Shri. Shrishrimal submitted that that Price of Electricity should not be unreasonable. It

should only reflect Generation, Transmission and Distribution Cost and no extra cost

should be charged from consumers. Shri. Shrishrimal also submitted that electricity

must be used efficiently.

1.22 Shri. D. Radhakrishna

59. Shri Radhakrishna submitted that the Open Access cannot be opertaionalised unless

there is unbounding of eligible consumers. Shri Radhakrishna also submitted that all

bulk consumers must be mandated to procure power form open market which includes

the embedded distribution company. Energy charges can be excluded for the

embedded consumers having more than 1 MW and distribution company be guided to

initiate proper price of the surplus power available to them.

1.23 Shri George John

60. Shri John submitted that the State Commission should have no role to fix the energy

charges of Open Access customers but should continue to fix only wheeling charges

and surcharges. Shri John also submitted that the Commission should also pass on the

liability of wheeling losses to such consumers who are buying power from

competitors to Distribution Licensees.

61. Shri John also submitted that it is not in agreement with MoP view on USO and

mentions that such riders will only benefit the DISCOMS/Distribution Licensees and

will defeat the purpose of Open Access.

1.24 Maratha Chamber of Commerce, Industries And Agriculture (MCCIA)

62. MCCIA, agreed to the views expressed by Attorney General for India especially on

point No.5 which is as under:


“5. In my opinion, the provisions of section 42(3) are important. Even after

Regulations are framed a person may continue to avail of electricity from a

distribution licensee. A person can require supply of electricity under Open Access

other than from a distribution licensee but such person has to give notice requiring

such supply. Further, such consumers have to enter into an agreement with .the

supplier in terms of section 49.Where there is no such notice and there is no such

agreement,……”

1.25 Finolex Industries Limited (FIL)

63. The FIL submitted that::

a) Need for NOC from distribution utility: FIL submitted that the process of

getting NOC even for captive consumption is very long-winded and subject to

arbitrary restrictions hence the same need to be simplified.

b) Open Access from Power Exchange: FIL suggested that Open Access from exc

c) hanges needs to be codified so that all eligible consumers may be able to get

benefit of this procedure.

d) Nature of short-term Open Access: FIL submitted that there must be provision

of annual short term transaction.

e) Open Access for consumers with contract demand less than 1MVA: FIL

submitted that Open Access must be available to consumers having Contract

Demand of above 500 KVA.

1.26 Maharashtra State Electricity Transmission Company Ltd. (MSETCL)

64. MSETCL submitted various suggestions/views are as under:

a) All consumers of 1 MW and above should install Special Energy Meters (SEM)

along with SCADA data communication and availability of data to SLDC.

b) Open Access consumer should be responsible for Grid support and must take

additional power from other sources as the Distribution Licensee is not under

obligation to supply power to such consumer.


c) As per clarification by MoP, it is felt that Open Access applicant may be required

to terminate the existing contract with existing Distribution Licensee and enter

into new contracts for availing Grid support and additional power required other

than the quantum of Open Access availed.

d) The Bulk Consumers should also share the proportionate Regional Transmission

Deviation Account Bills of CTU on account of deviation caused by them due to

overdrawl/underdrawl.

1.27 Captive Power Producers Association (CPPA)

65. CPPA submitted that:

a) the jurisdiction of the State Commissions in relation to bulk consumers, who opt

for Open Access, is limited to determination of wheeling charges, surcharge and

standby charges, but not fixation of the tariff.

b) The responsibility for the determination of tariff must continue with the State

Commissions. If it is left to the Discoms they may act in an arbitrary and

monopolistic fashion and jeopardize the business operations of a "bulk consumer”

or a partially Open Access consumer.

c) All bulk consumers should not be deemed to be Open Access consumers, but only

those that opt for the facility. The methodology of the implementation of Open

Access, including the metering arrangement and billing procedure by Discoms

have to be made simple and transparent.

1.28 Bajaj Finserv Ltd. (BFS)

66. BFS submitted that:

a) Bulk consumer of 1MW and above deemed to be Open Access does not mean

that they are disconnected from Discom. The State Commissions are mandated

to regulate and provide Open Access to all consumers who require power of 1

MW and more with same terms of prevailing agreements with Discom w.r.t.

minimum supply tenure, compensation, contract demand, connected load

sanction etc.


b) Open Access consumer is paying energy charges to his supplier at mutually

agreed price, so the State Commissions can only determine wheeling charges

and surcharges.

c) Act envisaged, obligation on Discom to supply power to Open Access

consumer connected to Discom, if desired by him. With the opinion of MoP, if

Discom starts negotiation with individual bulk consumers, deemed to be Open

Access then, it is natural, Discoms owned by the State Government might

distribute power under the State Government’s political directions and private

Discoms may dictate higher pricing for supply of electricity. Therefore, the

opinion of MoP is destroying the base of the Act.

d) As per MoP letter which called for notice for not seeking permission to use

Distribution Licensee's network under Section 42(3) is harmful to the system

because this section of Act is related to a person and not consumer, who needs

non discriminatory Open Access through common carrier. Hence, permission

instead of notice is necessary.

1.29 UltraTech Cement Ltd.

67. UltraTech submitted as under:

a) The term “bulk consumer” is not defined under the Act;

b) For bulk consumers to be deemed Open Access consumers is against the Rules

of Natural Justice and devoid of legal backing hence it was seriously objected;

c) Even surcharge could not be determined by the State Commission as

electricity is not being used by the consumer. Only wheeling charges are

applicable; and

d) Notice under section 42(3) is not a precondition for implementation of Open

Access but such notice intimates to Distribution Licensee about his readiness

to work on other power supply as after the said intimation, the distribution

licensee is not under obligation to compulsorily supply power to such

consumers.


1.30 Reliance Industries Ltd. (RIL)

68. RIL submitted as under:

a) As per Sections 2(15), 42(2), 42(3), Open Access merely means provision for

the use of transmission or distribution lines/system by any consumer in

accordance with the Regulations specified by the Appropriate Commission

and through this option consumer receives electricity from a generating

company or licensee other than distribution licensee ( to whom consumer’s

premises are connected for the purpose of receiving electricity with the works

of a distribution licensee). In case such consumer wants to receive electricity

from a person other than the Distribution Licensee, he has to give a notice

requiring the distribution licensee to wheel such electricity in accordance with

the Regulations made in that behalf.

b) If after such notice, the consumer actually receives electricity from a person

other than the Distribution Licensee, he becomes an Open Access consumer to

the extent of the electricity so received, whereas to the extent of the electricity

which he continues to receive from the Distribution Licensee, he continues to

be a 'consumer of the Distribution Licensee.

c) The expression “deemed Open Access consumer” is a misnomer and there is

no concept in law of any such deemed oven access consumer. There is

absolutely no warrant in law to treat bulk consumers as a deemed Open

Access consumer or as ineligible to be a consumer of the distribution licensee,

simply because there is a provision under the Regulations to enable him to

receive electricity from a person other than the Distribution Licensee.

d) Thus, bulk consumer (above 1 MW) cannot be deemed to be an Open Access

consumer or prevented from being a consumer of the distribution licensee.

e) Regarding the fixing of energy charges, for an Open Access consumer the

State Commission only has power to fix the tariff of electricity sold to a

consumer by a distribution licensee and not by a person other than the

distribution licensee upon Open Access. The energy purchase in case of the

latter sale is a bilateral agreement between the seller and the buyer and the

Commission cannot fix the energy charges. As empowered by Section 86 (1)

(a) the State Commission shall continue to determine the wheeling charges

and surcharge for Open Access consumer. The State Commission shall


continue to determine the tariff of the consumers, if and to the extent they

have not opted for Open Access.

f) USO has to be provided by the Distribution Licensee.

g) APTEL judgement dated July 11, 2006 in the matter of Hindalco v/s WBERC

regarding Universal Service Obligation of a distribution licensee is as under:

“ ……. So long as an Open Access consumer abides by the subsisting

terms and conditions as are applicable to identical industries the

Discom is obliged to supply and the standby energy has to be supplied

subject to terms to be agreed between Discom and the OA consumers”

h) RIL submitted that the notice under Section 42 (3), which is a precondition for

availing of Open Access, is not 'for seeking permission to use the Distribution

Licensee's network but for requiring the Distribution Licensee to wheel

electricity supplied by a person other than the Distribution Licensee to Open

Access consumer.

i) The reason for the addition of the words “save as otherwise provided in this

Act” at the opening of Section 43 of the EA 2003 by Electricity (Amendment)

Act, 2007 (Act of 26 of 2007) and whether any reference of the same can be

provided through Statement of Objects and Reasons of the Amended Act.

j) Statement of Objects and Reasons of the Electricity (Amendment) Act, 2007

(Act of 26 of 2007) does not highlight the amendment of Section 43 brought

in the Amended Act.

k) The words “save as otherwise provided” in statutory provision have been

interpreted by the Hon’ble Supreme Court to mean that the provision of law is

made subject to whatever is provided otherwise.

l) RIL also annexed various cases in this regard namely Punjab Sikh Regular

Motor Service vs. Regional Transport Authority, Raipur (AIR 1966 SC 1318),

South India Corporation (P) Limited vs. Secy. Board of Revenue, Trivandrum

(AIR 1964 SC 207) and Lalu Prasad Yadav vs. State of Bihar (AIR 201O SC

1561).

m) Various provisions of the Act which “otherwise provide” or are exceptions to

the Universal Service Obligation of the Distribution Licensee are as given

below:


a) Sub-section (2) of Section 43

b) Sections 42(2) and (3) read with Section 2(47)

c) Section 44

d) Section 47

e) Section 41

f) Section 56 and

g) Section 163

n) There is no provision of the Act by which any consumer can be denied the

benefit of the Universal Service Obligation of the Distribution Licensee.

o) The Distribution Licensee is mandated to supply stand-by power to the Open

Access consumers at Commission determined tariff.

2. COMMISSION’S RULINGS

69. The Commission has anlaysed the various suggestions by various stakeholders and

ruled on the following issues:

1) Whether all bulk consumers (above 1MW) shall be deemed to be open access

consumers with effect from January 2009 in terms of the last proviso to sub-

section (2) of Section 42?

70. The provisions relating to the providing of open access on the distribution system are

contained in sub-sections (2), (3) and (4) of Section 42 of the 2003 Act.

71. Sub-section (2) of Section 42 states “The State Commission shall introduce open

access”.

72. The introduc[tion] [of] open access”is to be “as may be specified”.

73. Under Section 2(62) "specified" means specified by Regulations made by the

Appropriate Commission ….under this Act”.

74. Under Sub-section (2) of Section 42 open access is to be introduced “in such phases

and subject to such conditions, (including the cross subsidies, and other operational


constraints) …..[having] due regard to all relevant factors including such cross

subsidies, and other operational constraints:”

75. Therefore, the State Commission is to introduce open access by notifying

Regulations-

1) in phases

2) subject to such conditions, (including

a. the cross subsidies, and

b. other operational constraints

c. [having] due regard to all relevant factors including such cross subsidies,

and other operational constraints:

76. The wheeling of electricity by a person, whose premises are situated within the area

of supply of a distribution licensee, under sub-section (3) of Section 42, is to be in

accordance with the aforesaid Regulations made by the State Commission.

77. Sub-section (4) of Section 42 states that “Where the State Commission permits a

consumer or class of consumers to receive supply of electricity from a person other

than the distribution licensee of his area of supply…”.

78. Thus, under Sub-section (4) of Section 42 the State Commission is to permit open

access to consumers.

79. It can be clearly seen from the above, that grant of or the provision of open access to

the distribution system is the sole prerogative of the State Commission.

80. If the State Commission does not introduce open access”, or does not “permit” open

access, then consumers / persons cannot take open access.

81. To appreciate this position better, it would need to be considered that the 2003 Act

nowhere states that the Distribution Licensee shall provide open access to its

consumers / persons. Unlike Section 43(1) the 2003 Act does not state that “Every

distribution licensee, shall, give open access to its distribution system to its consumers

or to any person”. Section 43(1) mandates that “Every distribution licensee, shall, on

an application by the owner or occupier of any premises, give supply of electricity to

such premises, within one month after receipt of the application requiring such


supply.” However, there is no such mandating provision in regard to the provision of

open access on the distribution system.

82. If that is the position of law on a plain reading of the statute, as aforestated, then it

could be said that the entitlement of consumers / persons to seek open access on

distribution system is circumscribed by the “introduction of open access” under sub-

section (2) of Section 42 / permission to consumers or class of consumers under sub-

section (3) of Section 42.

83. There is no statutory right granted to consumers to avail open access dehors /

irrespective of:

(A) the State Commission introducing open access under sub-section (2) of Section

42.

(B) Notification of Regulations under sub-section (2) of Section 42.

(C) grant of permission to consumers or class of consumers under sub-section (3) of

Section 42.

84. On the other hand, if there was a statutory right granted to consumers to avail open

access dehors (A),(B) and /or (C) above, then such a right would defeat -

a. Introduction of open access in phases

b. Notifying conditions, (including (a) the cross subsidies and (b)other

operational constraints)

85. If there was a statutory right granted to consumers to avail open access no matter

whatever it is, then there is no need to- [have] due regard to all relevant factors

including such cross subsidies, and other operational constraints. Then there is no

need to introduce open access in phases. Then there is no need to “[notify]

conditions” other than “cross subsidies, and other operational constraints”.

86. The conditions to be notified by State Commissions before introducing open access

include cross subsidies, and other operational constraints. It is an inclusive provision

in the language in sub-section (2) of Section 42. Therefore, the conditions to be

notified by State Commissions before introducing open access may be conditions not

necessarily limited to cross subsidies, and other operational constraints but may be


such other conditions that the State Commission may deem fit in the circumstances

that are prevailing or are relevant.

87. Therefore, the legislature has stated that the State Commissions are to specify by

Regulations “the extent of open access in successive phases”.

88. Nextly, the first proviso to sub-section (2) of Section 42 before it was amended by Act

26 of 2007, stipulated that “such open access may be allowed before the cross

subsidies are eliminated on payment of a surcharge”. This means that even if cross

subsidies are not eliminated open access may be allowed. The words in italics were

substituted by the words “such open access shall be allowed on payment of a

surcharge”. This can only mean that if a consumer / person pays surcharge then open

access may be allowed. If the provision was to mean that open access must be

allowed or is to be mandatorily allowed “on payment of a surcharge”, then there is no

question of the State Commission to (A) Introduce Open Access in phases; (B)

notifying conditions including cross subsidies and other operational constraints; (C)

permitting open access. The words “such open access shall be allowed on payment of

a surcharge”, cannot be read to imply that the State Commission is not entitled to

introduce open access in phases by notifying Regulations or that open access is not to

be circumscribed by its introduction in phases, or not to be subject to conditions

including cross subsidies and other operational constraints, etc. . If open access must

be allowed then there is no need of a regulatory framework to be notified under sub-

section (2) of Section 42.

89. The mandate under the last proviso to sub-section (2) of Section 42 to provide open

access to all consumers who require a supply of electricity where the maximum power

to be made available at any time exceeds one megawatt, is subject to and

circumscribed by –

(A) The conditions which may be imposed by the State Commission including

cross subsidies and other operational constraints because of the words “such

open access”. The first proviso to sub-section (2) of Section 42 also states

“such open access”. The word “such” assumes significance. The words

“such open access” is the open access that has been introduced by the State

Commission in phases and which is subject to conditions including the cross

subsidies and other operational constraints;


(B) Notification of Regulations.

90. The mandate under the last proviso to sub-section (2) of Section 42 is not dehors of

the mandate on the State Commission to introduce open access in phases; notification

of Regulations; and laying down conditions.

91. It is not a unbridled mandate under the last proviso to sub-section (2) of Section 42.

92. Even the last proviso entitles the State Commission to “provide .. open access”.

93. The fifth proviso to sub-section (2) of Section 42 state as follows -

“Provided also that the State Commission shall, not later than five years from

the date of commencement of the Electricity (Amendment) Act, 2003, by

regulations, provide such open access to all consumers who require a supply

of electricity where the maximum power to be made available at any time

exceeds one megawatt.”.

Conclusion – Bulk consumers (above 1MW) are not deemed to be open access

consumers with effect from January 2009 in terms of the last proviso to sub-section

(2) of Section 42.

2) Whether State Commissions can continue to regulate the tariffs for supply of

electricity to the open access consumers after January 2009 ?/ Whether the

jurisdiction of State Commissions in respect of the bulk consumers is limited to

fixing the wheeling charges and surcharge thereon in accordance with the

provisions of Sections 49 and 86(1)(a)?

And

3) When a person gives a notice under Section 42(3) to require the distribution

licensee to wheel electricity, such a person is exercising a right /entitlement/

option. If ‘open access’ were an obligation on such a person or if open access is

mandatorily to be taken by such a person, then where is the question of such a

person to give any notice to the distribution licensee under Section 42(3)?


94. The edifice of the argument that once “open access has been permitted to a category

of consumers under section 42”, then such consumers are mandated to only use the

wires of its incumbent distribution licensee but not take supply from the said

incumbent distribution licensee hits at the fundamental question as to whether ‘open

access’ is a right / entitlement / option or an obligation. Is ‘open access’ the exercise

of a right / entitlement or the ‘open access’ is to be mandatorily taken? These

questions need to be considered are as follows:-

95. Open Access is defined as under in the Electricity Act, 2003:

Section 2 (47) “ open access” means the non-discriminatory provision for the

use of transmission lines or distribution system or associated facilities with

such lines or system by any licensee or consumer or a person engaged in

generation in accordance with the regulations specified by the Appropriate

Commission;”

96. The words “non-discriminatory” suggests that ‘open access’ is a right / entitlement /

option.

97. The words “shall be allowed” in the first proviso to Section 42 implies that ‘open

access’ is a right / entitlement / option not an obligation. Open access is the exercise

of a right / entitlement / option when allowed or permitted by the State Commissions

but ‘open access’ is not to be mandatorily taken once allowed or permitted. How can

‘open access’ be a mandatory obligation if ‘open access’ is to be allowed? If

something is to be allowed then the sequitur is that it becomes an entitlement / option

not an obligation.

98. When a person gives a notice under Section 42(3) to the distribution licensee for

wheeling of electricity, such a person is exercising a right /entitlement/ option. If

‘open access’ was an obligation on such a person or if open access is mandatorily to

be taken by such a person, then where is the question of such a person to give any

notice to the distribution licensee under Section 42(3)?

99. The permission to be given by State Commissions under Section 42 (4) “to receive

supply of electricity from a person other than the distribution licensee of his area of

supply” can never imply that ‘open access’ is an obligation. A permission is not

accorded for self imposition of an obligation. A permission is accorded to have / take


a right or an entitlement. The language of Section 42 (4) is clear – “Where the State

Commission permits a consumer or class of consumers…”.

100. The underlined words in Section 39(2)(d)(ii) also make it clear that ‘open access’ is

the exercise of an entitlement not a mandatory obligation on the consumers to seek

‘open access’ – (ii) any consumer as and when such open access is provided by the

State Commission under sub-section (2) of section 42..”. The same words also appear

in Section 40(c)(ii).

101. Section 9(2) expressly uses the word “the right to open access”. Though, Section

9(2) does not apply to consumers but applies to captive power plants, yet in concept

‘open access’ has been explained in the said Section as a “right”.

102. Nowhere, in the 2003 Act, it is stated that ‘open access’ shall be mandatorily taken or

obtained by consumers.

103. By Act 26 of 2007, there was an amendment made in the first proviso to S. 42(2) to

the effect that the words “such open access may be allowed before the cross subsidies

are eliminated on payment of a surcharge” were substituted by the words “such open

access shall be allowed on payment of a surcharge”. This nowhere implies that ‘open

access’ becomes an obligation on consumers. It does not imply that ‘open access’

ceases to be an option but becomes an obligation.

104. As regards Section 49 of 2003 Act, the said Section can only mean that when a

consumer has been permitted open access to seek supply of electricity from a

generating company or any licensee other than the incumbent distribution licensee,

then such a consumer has an option to enter into an agreement with the “generating

company or any licensee” from whom a such a consumer is to seek supply of

electricity by using the distribution system of the incumbent distribution by wheeling

such electricity.

105. Section 49 uses the word “may enter into”. It does not state “shall enter into”. So

therefore, such consumers may, instead of paying regulated retail tariffs under clause

(d) of sub-section (1) of Section 61, pay mutually agreed tariff. Obviously, such a

tariff under Section 49 is to be paid to the generating company or the licensee from

whom the open access consumer would take the supply. Section 49 cannot mean that

such consumer has the option to pay mutually agreed and unregulated tariff to the

incumbent distribution licensee. The context in which Section 49 uses the words “on

such terms and conditions (including tariff) as may be agreed upon by them” is only


qua the generating company or the licensee from whom the consumer would take the

supply using the wires of the incumbent distribution licensee.

106. The words “any person” in Section 49 can only be the generating company or the

licensee from whom the consumer would take the supply using the wires of the

incumbent distribution licensee. The words “any person” in Section 49 cannot be the

incumbent distribution licensee.

107. In support of the contention that the proviso to Section 86(1)(a) excludes the

jurisdiction of the State Commission to determine the retail tariffs of consumers who

have been permitted to take ‘open access’ a concern has been put forth that such an

exclusion of jurisdiction is justified on the ground that there should be a definitive

obligation on ‘open access’ consumers not to take supply from the incumbent

distribution licensee, because in that case the incumbent distribution licensee could

plan its power procurement in a better fashion. This could be answered in terms of the

following aspects: (1) the incumbent distribution licensee is a deemed trader and can

sell to any source the excess / surplus power that is available with the incumbent

distribution licensee if open access consumers were to exercise the choice to take the

supply using the wires of the incumbent distribution licensee; (2) the incumbent

distribution licensee could sell the excess / surplus power to its existing consumers

who are subject to load shedding; (3) Moreover, Section 42(4) states that open access

consumers shall be liable to pay an additional surcharge to meet the fixed cost of

such distribution licensee arising out of his obligation to supply.

108. The Tariff Policy states at para 8.5.4 that the additional surcharge for obligation to

supply as per section 42(4) of the Act should become applicable only if it is

conclusively demonstrated that the obligation of a licensee, in terms of existing power

purchase commitments, has been and continues to be stranded, or there is an

unavoidable obligation and incidence to bear fixed costs consequent to such a

contract. The fixed costs related to network assets would be recovered through

wheeling charges.

109. Thus, the above could dispel the concern of avoidable power purchase costs.

110. One cannot possibly in regard to the proviso to Section 86(1)(a) contend that “where

open access has been permitted to a category of consumers” such consumers must buy

only at the prices to be determined by mutual agreement between the buyer and the

seller as contemplated in Section 49.


111. This contention would suggest that open access is an obligation on the consumer. That

the consumer has to mandatorily take open access where open access has been

permitted to a category of consumers. It is an obligation imposed upon the consumer.

This will not be a correct way of reading the proviso to Section 86(1)(a) and Section

49.

112. Open access is a right (subject to Regulations) but not an obligation. No one can be

forced to take open access.

113. In case the word “only” appearing in the said proviso implies that the State

Commission is not to determine the retail tariff for the category of consumers who

have been permitted open access it would consequently imply that the distribution

licensee of their area of supply would no longer have the obligation to supply to these

consumers. This would militate against the requirements of Section 43 (Duty to

supply on request).

114. Section 86(1)(a) lays down the function of the State Commission to determine the

tariff for generation, supply, transmission and wheeling of electricity. Such a function

has to be exercised from the parent Section that is Section 62(1). In the case of

Shri. Gajendra Haldea vs CERC and others, Hon’ble APTEL held in its judgment

dated December 22, 2006 that Section 86(1)(a) takes colour from Section 62(1). Some

passages are extracted as follows -

“34. It appears to us that the general words in Sections 79 (1) (a) & (b) and

86(1) (a) must take colour from the words used in Section 62 (1), particularly

Section 62 (1) (a). Otherwise, it is not possible to reconcile the provisions of

Section 62(1) on the one hand and Section 79 (1) (a) & (b) and Section 86(1) (a)

on the other.

Section 86(1)(a), which requires determination of tariff, inter alia, for ‘supply

and generation of Electricity’ must be construed with reference to Section

62(1),..

36. In case the Parliament intended the tariff to be determined under Section

79(1)(a) & (b) for generation and under Section 86 (1)(a) for generation and

supply independently of and dehors Section 62(1), Section 64 would have

authorized the concerned party to file an application under Section 79(1)(a) &


(b) and Section 86(1)(a) for determination of tariff. The fact that the statute

prescribed filing of an application under Section 62 before the Commission for

determination of tariff shows that the provisions of Sections 79(1)(a) & (b) and

Section 86 (1)(a) must take colour from the provisions of Section 62(1) of the

Act. In this view of the matter, there would be no need for a separate provision

for filing an application for determination of tariff under Section 79 (1)(a) & (b)

and Section 86 (1)(a). Therefore, the statute did not provide for a provision for

filing an application for determination of tariff under Section 79(1)(a) & (b) and

86(1)(a) of the Act.”

115. When in pursuance of Section 49 of the 2003 Act, consumers “enter into an

agreement with any person for supply or purchase of electricity on such terms and

conditions (including tariff) as may be agreed upon by them” there would be no

determination of tariffs by the Electricity Regulatory Commissions in such an event.

However, while exercising such a choice the consumers would have to give a notice

to the local incumbent distribution licensee requiring the distribution licensee to

wheel such electricity and the duties of the distribution licensee with respect to such

supply shall be of a common carrier providing non-discriminatory open access. Thus,

open access is a right or an option given to eligible consumers. A consumer who is

eligible for open access may for various techno-commercial reasons choose not to

avail of this facility and opt instead to purchase electricity from the local incumbent

distribution licensee. That option cannot be taken away from the consumer. When it

chooses to purchase electricity from the local incumbent distribution licensee, the

usual retail tariff as determined by the State Commission will have to apply. In regard

to the word “only” appearing in the proviso to Section 86(1)(a) the correct

interpretation of the proviso is that when eligible consumers actually avail of open

access, i.e., they purchase electricity from a source other than the local incumbent

distribution licensee, wheeling charges alone would be payable by them to the local

incumbent distribution licensee as determined by the Commission. But if they do not

wish to take supply through open access they would still have the choice to take

supply from the distribution licensee of their area of supply by paying the retail tariffs

determined by the Commission, and the proviso to Section 86(1)(a) would not come

in the way of such determination. In fact, the Commissions must determine retail

tariffs for all categories of consumers including those eligible for open access.


116. The open access option, in this context, implies freedom to get supply from a person

other than the distribution licensee of his area of supply. Section 42 being an enabling

provision should not be interpreted to mean that all consumers satisfying the condition

under Regulations must necessarily avail open access. Sub-section (3) of section 42 of

the Act, further makes it clear that consumers seeking open access can do so after

giving notice. The distribution licensee will be mandated to provide non-

discriminatory access to his network for such wheeling. As per the provisions of

Section 43 the distribution licensee is under an obligation to supply electricity as and

when requested to do so, implying that the option and choices remain open to the

consumers.

117. Under Section 43 the distribution licensee has a fundamental obligation to provide

supply of electricity when requested for such supply. The eligible consumers in the

area of supply have an option to take supply either from the distribution licensee or

sources other than the distribution licensee. Being eligible to seek supply of electricity

from a source other than the distribution licensee does not bar the consumer in the

area of supply to instead opt to take supply from distribution licensee and does not

relieve the distribution licensee of the obligation to supply.

118. The Commission also analysed the implementation issue involved in mandating Open

Access for the consumers requiring power in excess of 1 MW. It would not then be

possible to work out the surcharge in accordance with the formula provided in the

Tariff Policy at clause 8.5.1. As per the formula, the surcharge cannot be determined

if there is no tariff determination for that consumer category. Further, the Commission

has to follow the provisions of Section 61 of the Act for framing and notifying

appropriate Regulations for determination of the tariff by the Commission. The

Section clearly indicates that for specifying the terms and conditions for

determination of the tariff, the Commission shall be guided by, among other items, the

National Electricity Policy and tariff policy. Since, there has not been any amendment

in Section 61 of the Act, the cross subsidy surcharge cannot be determined if the tariff

for the consumers of load in excess of 1 MW is not determined.


Conclusion -

a) The jurisdiction of the State Commissions to determine retail tariffs under

Section 62(1)(d) is not ousted by the proviso to Section 86(1)(a) because the

proviso to Section 86(1)(a) is triggered only when the consumers exercise the

entitlement / option to seek open access.

b) As per the formula provided in at clause 8.5.1 of Tariff Policy, the surcharge

cannot be determined if there is no tariff determination for that consumer

category. Since, there has not been any amendment in Section 61 of the Act, the

cross subsidy surcharge cannot be determined if the tariff for the consumers of

load in excess of 1 MW is not determined.

4) Whether obligation cast on Distribution Licensee to supply on request under

Section 43 of Act, is also applicable to the Open Access Consumer?

And

5) Where consumer have an option to procure electricity from competing sources,

then terms of Supply from Distribution Licensee to be as per Section 49 of Act.

119. The Commission for the purpose of deciding objectively, has analysed various

provisions of the Act and considered the following definitions/ Sections of the Act:

Section 2(17) of Act:"distribution licensee" means a licensee authorised to operate

and maintain a distribution system for supplying electricity to the consumers in his

area of supply” (emphasis supplied)

Section 42 of Act: “42. Duties of distribution licensees and open access

(1) It shall be the duty of a distribution licensee to develop and maintain an efficient,

co-ordinated and economical distribution system in his area of supply and to supply

electricity in accordance with the provisions contained in this Act.” (emphasis

supplied)

Section 2(70) of Act:"supply", in relation to electricity, means the sale of electricity

to a licensee or consumer;

Section 2(15) of Act: “consumer" means any person who is supplied with electricity

for his own use by a licensee or the Government or by any other person engaged in

the business of supplying electricity to the public under this Act or any other law for

the time being in force and includes any person whose premises are for the time


being connected for the purpose of receiving electricity with the works of a licensee,

the Government or such other person, as the case may be” (emphasis supplied)

Section 43 of Act: “43. Duty to supply on request

(1) Every distribution licensee, shall, on an application by the owner or occupier of

any premises, give supply of electricity to such premises, within one month after

receipt of the application requiring such supply:

...

PROVIDED that no person shall be entitled to demand, or to continue to receive,

from a licensee a supply of electricity for any premises having a separate supply

unless he has agreed with the licensee to pay to him such price determined by the

Appropriate Commission.”(Emphasis supplied)

Section 44 of Act: “44. Exceptions from duty to supply electricity

Nothing contained in section 43 shall be taken as requiring a distribution licensee to

give supply of electricity to any premises if he is prevented from so doing by cyclone,

floods, storms or other occurrences beyond his control.” (emphasis supplied)

Section 49 of Act: “49. Agreements with respect to supply or purchase of electricity

Where the Appropriate Commission has allowed open access to certain consumers

under section 42, such consumers, notwithstanding the provisions contained in clause

(d) of sub-section (1) of section 62, may enter into an agreement with any person for

supply or purchase of electricity on such terms and conditions (including tariff) as

may be agreed upon by them.”

120. The Hon’ble Appellate Tribunal for Electricity has settled the issue of USO in the

context of distribution open access by its Judgement dated 11 May, 2006 in Appeal

No. 34 of 2006 in the matter of M/s Bhushan Limited Versus West Bengal State

Electricity Board and others, as well in its judgement dated 11July, 2006 in the matter

of Indian Aluminium Company Limited (since known as HINDALCO Industries

Limited) Versus West Bengal Electricity Regulatory Commission and others. The

decisions in both of these aforesaid Judgements are extracted below:-

a) M/s Bhushan Limited Versus West Bengal State Electricity Board and others

“ 8. In this appeal, the following points arise for consideration:-


i. Whether the direction of the Regulatory Commission that the appellant shall

cease to be a consumer of the WBSEB as a condition for availing open access

is sustainable in law?

ii. Whether there could be a direction to the applicant to sever its consumer

relationship with the area Discom, for grant of open access?

.........

11. In law and as per statutory provisions so long as the appellant desires to

continue its relationship with the area distribution licensee and agree to abide

by the stipulations, there can be no direction or compulsion to sever its

relationship as a consumer.

…….

12. Taking up the first point for consideration, we are to point out that Sub-

Section (2) of Section 42 of The Electricity Act 2003 mandates the State

Commission to introduce open access in such phases and subject to such

conditions, including cross subsidies and other operational constraints having

due regard to all the relevant factors including such cross subsidies. Sub-

Section (4) of Section 42 provides that where the State Commission permits a

consumer to receive supply of electricity from a person other than the

distribution licensee of its area of supply, such consumer shall be liable to pay

an additional surcharge on the charges of wheeling, as may be specified by

the State Commission, to meet the fixed cost of such distribution licensee

arising out of its

obligation to supply. Nothing in the The Electricity Act 2003 which either

directs or mandates that a consumer who applies for open access should cease

to be a consumer of the area Discom.

13. The provisions of The Electricity Act 2003 on the other hand enables a

consumer to continue as the consumer of area Discom so long as the

consumer is willing to pay the charges prescribed and comply with the terms

and conditions as stipulated. Section 43 of The Electricity Act 2003 provides

that every distribution licensee shall on an application by the owner or

occupier of any premises supply electricity within its area of supply within one

month from the date of receipt of an application in this behalf subject to the

applicant paying the requisite charges. There is no doubt that WBSEB has the


universal obligation to serve all the consumers within the area of supply.

Admittedly the appellant’s plant in Bhangihatti is connected to WBSEB system

and the appellant is an existing consumer, as defined in Section 2 (15) of The

Electricity Act 2003.

14. As already pointed out, Section 43 mandates that the area licensee shall

supply power so long as the consumer remits the charges prescribed as per

Tariff Notification and as provided in Section 45 of The Electricity Act 2003.

Section 48 enables the distribution licensee to impose certain additional

conditions when open access is permitted.

Section 49 which has a bearing reads thus:-

“49. Agreements with respect to supply or purchase of electricity.-

Where the Appropriate Commission has allowed open access to

certain consumers, under section 42, such consumers, notwithstanding

the provisions contained in clause (d) of sub-section (1) of section 62,

may enter into an agreement with any person for supply or purchase of

electricity on such terms and conditions (including tariff) as may be

agreed upon by them.”

Section 49 of The Electricity Act 2003 provides for an agreement being

entered between an open access consumer and the distribution licensee for

supply or purchase of electricity on such terms and conditions, including the

tariff as may be agreed upon by them. Section 56 of The Electricity Act 2003

provides for disconnection of supply.

15. On a careful consideration of various provisions in The Act, we find that

there is no provision in the Act which mandates that the consumer, like the

appellant, should cease to be a consumer of electricity from the area

distribution licensee or sever its connection as a consumer with the said area

distribution licensee merely because open access is applied and allowed. The

appellant has unequivocally made it clear that the appellant is willing to pay

the charges prescribed by the area distribution licensee including demand

charges, energy charges and other charges for the connected load of 14.9

MVA in the same manner as in the case of identically placed industrial

consumers in the area and the appellant is ready and willing to remit the

charges payable to the area distribution licensee.


16. There is no reason or rhyme to hold that the appellant on being granted

open access should sever its existing relationship with the area distribution

licensee. Section 49 of The Act provides for an agreement being entered into

when open access is allowed to consumers for supply or purchase of

electricity on such terms and conditions including tariff as may be agreed

upon. We do not find any justifiable reason for the direction issued by the

Regulatory Commission in this respect. The West Bengal Electricity

Regulatory Commission (Terms and Conditions for Open Access) Regulations

2005 also do not impose such a condition. In fact, Regulation 12 of the said

Regulations provides for entering into a commercial agreement with a

distribution licensee and abide by various conditions relevant thereto.

Regulation 13.4 also in no way provides for such a direction.

17. We are unable to appreciate the view of the Commission that the appellant

cannot demand supply of back-up power from the WBSEB as a matter of right

even though nothing could prevent the appellant to enter into a separate

agreement for supply of back-up power on terms and conditions mutually

acceptable to both. None of the provisions of The Act or the Rules framed

thereunder or the Regulations framed by the WBERC has been placed before

us to show that the appellant should sever its relationship as a consumer with

WBSEB on its being granted open access. So long as the appellant is

agreeable to pay the charges prescribed in this behalf to an identical industry,

the appellant, an existing consumer cannot be directed to sever its relationship

with area distribution licensee. The construction placed on Section 42 (3) of

The Electricity Act runs counter to the very section. The object and scope of

the provision has been lost sight and as an existing consumer the appellant

could continue its relationship. Such a construction cannot be appreciated as

it runs counter to plain meaning of the provisions of the Act.”

b) Indian Aluminium Company Limited Vs. WBERC and others.

“14. The following points are framed for consideration in this appeal:-

(A) Whether the direction of the West Bengal State Electricity Regulatory

Commission that the appellant shall cease to be a consumer of CESC limited

as a condition for availing open access is sustainable? Whether in terms of


The Electricity Act, 2003 a consumer who applies for open access should

disassociate itself with the area DISCOM?

(B) Whether the appellant has to sever its existing consumer relationship with

CESC Limited, the area DISCOM for grant of open access?

(C) Whether the area DISCOM is obliged to supply standby energy to the

appellant and if so, under what conditions?

...

18. In law and as per statutory provisions so long as the appellant desires to

continue its relationship with the area distribution licensee and agree to abide

by the stipulations, there can be no direction or compulsion to sever its

contractual relationship as a consumer of the area DISCOM. In the present

case, the appellant as already pointed out, had agreed to comply with the

existing terms and conditions of supply and is ready to remit all the charges

prescribed as a consumer of electricity to CESC Limited. It is rightly pointed

out that the appellant has not sought for any variation with respect to its being

a consumer of CESC for the connected load of 8.5 MW at 33 KV nor it has

sought for any reduction in demand charges or energy charges or other

charges consequent to open access being allowed in its favour.

19......... Nothing in The Electricity Act 2003 which either directs or

mandates that a consumer who applies for open access should cease to be a

consumer of the area DISCOM.

20. The provisions of The Electricity Act 2003 on the other hand enables a

consumer to continue as the consumer of the area DISCOM so long as the

consumer is willing to pay the charges prescribed and comply with the terms

and conditions as stipulated. Section 43 of The Electricity Act 2003 provides

that every distribution licensee shall on an application by the owner or

occupier of any premises supply electricity within its area of supply within one

month from the date of receipt of an application in this behalf subject to the

applicant paying the requisite charges. There is no doubt that CESC Ltd. has

the universal obligation to serve all the consumers within the area of supply.


Admittedly the appellant’s plant in Belurmath is connected to CESC system

and the appellant is an existing consumer, as defined in Section 2 (15) of The

Electricity Act 2003. The appellant without any reservation agreed to continue

its contractual obligations with the CESC Ltd. even on its being granted short

term open access.

21. As already pointed out, Section 43 mandates that the area licensee shall

supply power so long as the consumer remits the charges prescribed as per

Tariff Notification and as provided in Section 45 of The Electricity Act 2003.

Section 48 enables the distribution licensee to impose certain additional

conditions when open access is permitted.

Section 49 which has a bearing reads thus:-

“49. Agreements with respect to supply or purchase of electricity.-Where the

Appropriate Commission has allowed open access to certain consumers,

under section 42, such consumers, notwithstanding the provisions contained in

clause (d) of sub-section (1) of section 62, may enter into an agreement with

any person for supply or purchase of electricity on such terms and conditions

(including tariff) as may be agreed upon by them.”

22. It is to be pointed that Section 49 of The Electricity Act 2003 provides for

an agreement being entered between an open access consumer and the

distribution licensee for supply or purchase of electricity on such terms and

conditions, including the tariff as may be agreed upon by them. Section 56 of

The Electricity Act 2003 provides for disconnection of supply in default of

payment by the area DISCOM, which applies to all consumers, whether the

consumer has been permitted open access or not.

23. On a careful consideration of various provisions of The Electricity Act,

2003 we find that there is no provision in the Act which mandates that the

existing consumer, like the appellant, should cease to be a consumer of

electricity from the area distribution licensee or sever its connection as a

consumer with the said area distribution licensee merely because short term

open access is applied for and allowed for interstate transmission from its


CPP. The appellant has unequivocally made it clear that the appellant is

willing to pay the charges prescribed by the area distribution licensee

including demand charges, energy charges and other charges for the

connected load of 8.5 MW in the same manner as in the case of identically

placed industrial consumers in the area and the appellant is ready and willing

to remit the charges payable to the area distribution licensee.

24. There is no reason or rhyme to hold that the appellant on being granted

open access should sever its existing contractual relationship with the area

distribution licensee or shall cease to be a consumer of the area DISCOM/

Licensee. Section 49 of The Act provides for an agreement being entered into

when open access is allowed to consumers for supply or purchase of

electricity on such terms and conditions including tariff as may be agreed

upon. We do not find any justifiable reason for the direction issued by the

Regulatory Commission in this respect. The West Bengal Electricity

Regulatory Commission (Terms and Conditions for Open Access) Regulations

2005 also do not impose such a condition. In fact, Regulation 12 of the said

Regulations provides for entering into a commercial agreement with a

distribution licensee and abide by various conditions relevant thereto.

Regulation 13.4 also in no way provides for issue of such a direction.

25. We are unable to appreciate the view of the Commission that the appellant

cannot demand supply of back-up power from the CESC Ltd. as a matter of

right even though nothing could prevent the appellant to enter into a separate

agreement for supply of back-up power on terms and conditions mutually

acceptable to both. None of the provisions of The Act or the Rules framed

thereunder or the Regulations framed by the West Bengal State Electricity

Regulatory Commission has been placed before us to show that the appellant

should sever its relationship as a consumer with CESC on its being granted

open access. So long as the appellant is agreeable to pay the charges

prescribed in this behalf to an identical industry, the appellant, an existing

consumer cannot be directed to sever its relationship with area distribution

licensee. The construction placed on Section 42 (3) of The Electricity Act runs

counter to the very section. The object and scope of the provision has been lost


sight and as an existing consumer the appellant could continue its

relationship. Such a construction cannot be appreciated as it runs counter to

plain meaning of the provisions of the Act. Section 42(3) enables an existing

consumer of an area DISOCM Licensee requires supply of electricity from a

generating company or any licensee other than the area licensee, such

consumer may require the Distribution Licensee for wheeling of electricity in

accordance with Regulations framed by Regulatory Commission and area

DISCOM is to act as a common carrier.

26. All that Section 42 (3) provides that a distribution licensee shall be a

common carrier providing non-discriminatory open access when the consumer

seeks for open access and wheeling power in accordance with the Regulations

made by the State Commission. Hence, we hold that the WBER Commission

has no justification nor authority nor warrant nor jurisdiction to direct the

appellant to sever its status as a “consumer” with WBSEB. Such a condition is

not contemplated to be imposed while allowing an application for open access

in terms of The Electricity Act 2003 or Regulations framed there under either

by CERC or WBERC.”

121. The position of law laid down by the Hon’ble Appellate Tribunal is clear from the

above extracts. This Commission is bound by the same. Hence, this issue is decided in

terms of the above.

122. From the conjoint reading of above mentioned provisions of Act, the following

position can be inferred:

a) The supply, as per Section 2(70)of Act, means sale of electricity to consumer,

apart from sale to any other Licensee.

b) Section 43 of Act provides for the consumers of the area of licensee having the

right to take supply from the Licensee and Licensee is under obligation to

provide that;

c) Also, it is the duty of Distribution Licensee to provide supply to the consumer

even when a consumer has opted for meeting its partial requirement from the

Distribution Licensee and which is identified in the definition of consumer in

Section 2(15) of Act. This will be in accordance with the Hon’ble Appellate

Tribunal’s Judgement dated 11 May, 2006 in Appeal No. 34 of 2006 in the


matter of M/s Bhushan Limited Versus West Bengal State Electricity Board

and others, and judgement dated 11 July, 2006 in the matter of Indian

Aluminium Company Limited (since known as HINDALCO Industries

Limited) Versus West Bengal Electricity Regulatory Commission and others.

Hence, so long as the consumer desires to continue its relationship with the

area distribution licensee and agree to abide by the stipulations, the USO

cannot be exempted provided that the consumer should agree to comply with

the existing terms and conditions of supply and is ready to remit all the

charges prescribed as a consumer of electricity.

d) Distribution Licensee gets exemption from such obligations as cast in Section

43 of Act, only in two situations; one, if the consumer does not agree to pay

the price fixed by the Commission and the other being a situation like cyclone,

floods, storms or other occurrences beyond the control of the licensee; and

e) The terms and conditions of supply have to be in accordance with conditions

of its Licence and Supply Code Regulations. Distribution Licensee is also

required to follow the Standards of Performance (SoP) Regulations specified

under Section 57 of the Act.

123. From the conjoint reading of various Sections of the Act mentioned above, the

Commission notes that the USO cast on Distribution Licensee through Section 43 of

Act is applicable even when open access is being sought by a consumer.

124. The issue is where a consumer has an option to procure electricity from competing

sources, then terms of Supply from Distribution Licensee should be as per Section 49

of Act or not. Section 49 reads as follows:-

“49. Where the Appropriate Commission has allowed open access to certain

consumers under section 42, such consumers notwithstanding the

provisionscontained in clause (d) of sub-section (1) of section 62, may enter

into an agreement with any person for supply or purchase of electricity on

such terms and conditions (including tariff) as may be agreed upon by them.”

{Underlining added}


125. The words “any person” in Section 49 does not oust the Distrbution Licensee. Section

49 cannot be artificially restricited to entities other than the Distrbution Licensee.

The words “any person” in Section 49 are clear and unambiguous. Hence, where the

Commission has allowed open access to certain consumers under section 42, such

consumers notwithstanding the provisions contained in clause (d) of sub-section (1) of

section 62, may enter into an agreement with the Distribution Licensee for supply or

purchase of electricity on such terms and conditions (including tariff) as may be

agreed upon by them.

126. The words “any person” in section 49 is not and cannot be restricted to a generating

company or a trader, as any such restricted interpretation would be to add words to

that effect in section 49 which otherwise section 49 does not contain. Such an

approach will be clearly impermissible in law as per well settled principles of

statutory interpretation. It is well settled that when the words of a statute are clear,

plain or unambiguous, i.e., they are reasonably susceptible to only one meaning the

Courts are bound to give effect to that meaning irrespective of consequences (Nelson

Motis v. Union of India AIR 1992, SC 1981, p, 1984; Gurudev Dutt VK SSS Mariadit

v. State of Maharashtra, AIR 2001, SC 1980 p 1991).

127. Clause(x) of para 4 of the Statement of Objects And Reasons of the Electricity Act

2003, has no connection with section 49 thereof. The said clause reads as follows:

“(x) Where there is direct commercial relationship between a consumer and a

generating company or a trader the price of power would not be regulated and

only the transmission and wheeling charges with surcharge would be regulated”.

128. Section 62(1) neither provides for determination of tariff for the supply of electricity

by a generating company to a consumer nor it provides for the determination of tariff

for the supply of electricity by a trader to a consumer. Hence clause (x) of para 4 of

the Statement of Objects and Reasons correctly states that the price of power would

not be regulated where there is direct commercial relationship between a consumer

and a generating company or a trader and that in such a situation, only the

transmission and wheeling charges with surcharge would be regulated.

129. The words “notwithstanding the provisions contained in clause (d) of sub-section (1)

of section 62” makes an express exception to the determination of tariff for “retail

sale of electricity”. The tariff for retail sale of electricity arises when a distribution


licensee supplies electricity to its consumers. The non-obstante provision in Section

49 means that even though it is the function of the Commission to determine tariff for

the retail sale of electricity the same shall not apply when certain consumer who have

been allowed open access under Section 42 enter into an agreement with any person

for supply or purchase of electricity on such terms and conditions (including tariff) as

may be agreed upon by them. It is significant to note that Section 49 uses the words

“supply or purchase”.

130. The word “supply” is defined in Section 2(70) to mean the sale of electricity to a

licensee or consumer. Hence this indicates that consumers may enter into an

agreement for the sale of electricity to them. The words “any person” does not

exclude a distribution licensee.

131. The Commission can take into account the provision in Section 45(2) in terms

whereof “ the methods and principles as may be specified by the concerned State

Commission” can be employed for the charges under Section 49 for the electricity

supplied by a distribution licensee to an open access consumer. Hence, this

Commission can notify the methods and principles under Section 45(2) based on

which consumers having demand exceeding 1 MW could enter into negotiated tariffs

and other terms and conditions with their incumbent distribution licensee.

132. The interpretation that Section 49 entitles a consumer to negotiate tariffs and other

terms and conditions only where the supply is from a source other than the

distribution licensee of the area, is, ex-facie contrary to the Judgement of the Hon’ble

Appellate Tribunal for Electricity in Bhushan Limited vs. West Bengal State

Electricity Board & Ors (2007 APTEL 600). In the said judgement Hon’ble Appellate

Tribunal held inter alia as follows:

“14. ……Section 49 of the Electricity Act, 2003 provides for an

agreement being entered between an open access consumer and the

distribution licensee for supply or purchase of electricity on such

terms and conditions, including the tariff as may be agreed upon by

them.”

133. Identical decision as above has been rendered in the Judgement of the Hon’ble

Appellate Tribunal in Indian Aluminium Ltd vs. WBERC & Ors (2007 APTEL 791).


Conclusion -

1. The USO cast on Distribution Licensee through Section 43 of Act is applicable

even when open access is being sought by a consumer.

2. Section 49 entitles a consumer to negotiate tariffs and other terms and conditions

only where the supply is from a source other than the distribution licensee of the

area.

6) What is the nature of declaration/direction contained in MoP letter ?

134. The Commission observed that a majority of the stakeholders were of the view that

the present system of optional Open Access should continue and the obligatory Open

Access for the consumers of load in excess of 1 MW must not be enforced. The

Commission noted the suggestions of various stakeholders on this issue.

135. The Commission also notes that the Act stipulates that under Section 108 of the Act,

the State Government may issue directions to the State Commission.

Section 108. (Directions by State Government):

“(1) In the discharge of its functions, the State Commission shall be guided by

such directions in matters of policy involving public interest as the State

Government may give to it in writing.

(2) If any question arises as to whether any such direction relates to a matter

of policy involving public interest, the decision of the State Government

thereon shall be final.”

136. The Commission is of the view that the MoP letter based on the opinion from M/o

Law and Justice on Operationalisation of Open Access in Power Sector is nature of

suggestion/advisory for development of market in the Power Sector to the State

Commissions and may be looked as ‘Policy Vision’ of the Central Government.

Conclusion - The MoP letter based on the opinion from M/o Law and Justice on

Operationalisation of Open Access in Power Sector is nature of suggestion/advisory for

development of market in the Power Sector to the State Commissions and may be

looked as ‘Policy Vision’ of the Central Government.


7) Technical and Operational constraints in implementing directives of MoP letter

137. The Commission further notes that there are number of technical and commercial

constraints in implementing the MoP Letter which are as under:

i. Capacity building at SLDC: SLDC needs to have the necessary technology,

expertise, manpower to handle such large number of Open Access approval

requests.

ii. Ring-fencing of SLDC: SLDC would have to be independent while executing its

authority of scheduling Open Access requests.

iii. Wheeling Capacity: For the purpose of Open Access only spare capacity by

inherent design margin and variation in power flow is available for Open Access.

This does not assure Open Access consumer for continuous supply.

iv. Segregation of Wires and Supply Cost: Cost for wire business and power supply

business should be properly segregated so as to arrive at a consistent wheeling

charge. Wheeling losses should also be limited to technical losses and must

exclude commercial losses as most of the bulk consumers are connected at 11 kV

and above, whereas most of the commercial losses occur at below 11 kV level.

v. Availability of Spinning Reserve/ Non Bonded Power: There should be

availability of power which has not been committed for long term PPA or some

peaking Power Plants as a Spinning Reserve. Since most of the generators have

tied up their power on long term basis with the Distribution Companies, a very

limited capacity is available for merchant transactions. If availability of non-

bonded power does not materialise it would completely distort demand supply

equation in favour of power producer and will put undue pressure on Open Access

consumers. If Discoms are not obligated to supply power to bulk consumers, they

will have huge amount of excess capacity and thus will monopolies the market as

major sellers of power.

vi. Technical Requirements for Open Access: Open Access consumers need to

comply with the various provisions of the MERC Distribution Open Access

Regulations, 2005, as amended from time to time, regarding eligibility criteria,

reduction of contract demand, execution of connection, installation of Special

Energy Meters, wheeling charges, payment of cross subsidy surcharge, etc.


vii. Nature of Usage: The type of Open Access consumer whether captive or not

needs to be ascertained by the Distribution Licensee prior to giving permission as

it is linked to payment of Cross Subsidy Surcharge (CSS).

viii. Capacity Building for Open Access Consumers: All Open Access consumers

may not be well versed with the procedures of Open Access, scheduling of power

and other activities.

ix. Separate/dedicated Feeders: Bulk Consumers might need separate feeders for

reliable power supply, for which Distribution Licensee may have to set up

infrastructure.

x. Installation of SEMs: Installation of SEM meters by all consumers above 1 MW.

Intra State ABT would be applicable to all Open Access consumers.

xi. Coordination Mechanism: Need for proper mechanism to ensure coordination

between all concerned Distribution Licensee, State Transmission Utility, Open

Access Consumer, Generator, Load Despatch Centres at various levels, etc.

xii. Connectivity with SLDC: In case of failure of Open Access generator, SLDC

must direct concerned host to limit its load to that extent in order to ensure smooth

grid operation. Such real time communication is not available for Open Access

consumers with SLDC currently.

xiii. Revenue Impact of Switching of Consumers: Recovery of expenditure, due to

creation of infrastructure, incurred by a Distribution Licensee for new consumer

who after availing Distribution Licensee's supply opts for Open Access.

xiv. Revenue Impact on account of switching of Cross-subsidising consumers:

Revenue loss due to migration of consumers (1 MW and above) as they are

subsidising consumers for consumers needs to be recovered from remaining

consumers of Distribution Licensee, which may lead to tariff increase.

xv. Futures trade- Power exchange: In the absence of possibility of longer period

transactions (i.e. month ahead / half yearly / yearly / etc.), the bulk consumers of

power may not be able to plan their long term requirements. Until longer period

transactions are materialised, the bulk consumers would have limited options and

consequently would have to face the uncertainty of power prices.

xvi. Limitation in Over Drawal: If Open Access consumers do not take standby

power from Discoms, rather they draw power from Grid in case of failure of their


Supplier's Generator, such power will flow through UI and many times, system

conditions may not permit drawal of power through UI.

xvii. Communication Infrastructure: Monitoring infrastructure (SCADA) also will

have to be in place.

xviii. Scheduling of non-solar generators below 10 MW and solar generators below

5 MW: As per CERC (Terms and Conditions for Tariff determination from

Renewable Energy Sources) all non-solar generators below 10 MW and solar

generators below 5 MW are not be subjected to scheduling and UI. However,

deviations of these generators will have impact on State UI. State UI cannot be

apportioned to them, as their deviations will not be captured. This issue will be

needed to be handled in Intra-State ABT mechanism.

xix. Commercial Settlement: There are issues associated with one generator selling

power to number of consumers through Open Access. Implementation issues for

Scheduling and commercial settlement of such generator’s energy needs to be

looked in to.

xx. Switching during Off-peak hours: Swithcing by consumers during off-peak

hours to Power exchange, etc., and returning back to Distribution Licensee for

meeting their Peak requirement, shall also be looked in to.

8) Other practical issues arising out of the implementation of the MoP’s Letter:

i) In a Section 49 scenario, how will the DISCOMs, which are by and large in

public sector, fix the energy charges for the Open Access consumers who

may decide to continue with them? As the Regulator would no longer be

fixing the energy charges, the distribution licensees would have to evolve a

transparent methodology for fixing such energy charges in order to avoid the

allegations of arbitrariness or discrimination. The system would also have to

pass the scrutiny of the Regulator who would be concerned about the financial

impact of these transactions on the licensees business as it might affect the

regulated consumers.

ii) A system would have to be evolved to apportion power from the long term

PPAs for the regulated consumers and the unregulated Open Access

consumers.


iii) In case of stranded capacity due to migration of Open Access consumers the

fixed liability of the distribution licensee in honoring such PPAs would have

to be passed on by way of an additional surcharge to the Open Access

consumers.

iv) In view of the 1 MW and above consumers not necessarily being on separate

feeders how would the distribution licensee manage load shedding whenever

there is a shortage?

v) In case adequate electricity is not available in the market would the Open

Access consumers resort to splitting their connected load?

vi) What would be the impact on the price of electricity if so many Open

Access consumers would be compelled to source electricity from the open

market? Will this not subject these consumers to the mercy of the market and

thereby increase the cost of electricity in running their business?

vii) Should the migration to the Open Access regime be done by providing a

period of transition during which the necessary administrative arrangements

can be put in place?

138. The Commission is of the opinion that the ‘Policy Vision’ of the Ministry of Power

for implementation of Open Access can be implemented only if technical and

commercial constraints as mentioned above are deliberated and amicable solutions are

arrived at.

139. The Commission for this purpose directs the Secretary of the Commission to form a

Open Access Committee comprising of representatives from Distribution Licensees

and other experts, to look in to the matter and submit its report within one year of its

formation.

140. The broad Terms of Reference (ToR) provided to the Open Access Committee shall

be as follows:

a) Study the technical, operational and commercial constraints in the context of

implementing the Open Access Scheme as proposed in the MoP letter;

b) Scenario Analysis of Revenue loss of the implementation of Open Access

scheme as proposed in the MoP letter on various Discoms in State of


Maharashtra and also the corresponding tariff increase required to mitigate the

same;

c) Anlaysis and recommendation on the possible solutions for the constraints

identified;

d) Road map for implementing Open Access Scheme as visioned in the MoP

letter in the State of Maharashtra.

141. The Commission based on the recommendations of the Open Access Committee, shall

revisit the matter through a separate proceedings.

With this Order, Case No. 50 of 2012 stands disposed of.

Sd/- sd/-

(Vijay L. Sonavane) (V. P. Raja)

Member Chairman


APPENDIX – 1

List of Persons who attended the Public Hearing held on 12 October, 2012

Sr.

No. Name Institution/Individual

Consumer Representative u/s. 94(3) of the EA, 2003 for this Case

1. Representative of Prayas (Energy

Group)

Consumer Representative u/s. 94(3) of the EA,

2003 for this Case

2. Representative of Vidarbha

Industries Association.


2003 for this Case

3. Representative of Thane Belapur

Industries Association


2003 for this Case

Other Representatives

4. Representative of Bajaj Finserv Ltd. Individual

5. Shri Rakhsapal Abrol Individual (Representative of Bharatiya Udhami

Avam Upbhokta Sangh.)

6. Representative of Central Railway Individual

7. Shri. N. Ponarathnam Individual

8. Shri. S.H. Waikar MSEDCL

9. Shri. A.V. Bute Individual

10. Shri. R.B. Kolhe Individual

11. Shri. M.Shenbagam Individual

12. Shri. M.M. Varshneya Individual

13. Shri. Ravindra Chavan Vestas

14. Shri. Mahesh Chavan Vestas

15. Shri. S.K. Parik Individual

16. Shri. S.K. Shivaraj Individual

17. Shri. B. Maharuappa Davangere Individual

18. Shri. Jagdish N. Chittpa Individual

19. Shri. S.C.Singh Individual

20. Shri. M.A. Pathan Individual

21. Shri. Harkrishnan BElectric

22. Shri. Arun Sharma Vestas

23. Shri. V H Wagle Tata Power Company

24. Manasvi Sharma Individual

25. Shital H. Khiraiya Tata Power Company

26. Shri. Amey Neid Individual

27. Adv. Dipali Sheth (Tata Motors

Ltd.)

Individual

28. Adv. Dhwani Mehta (Tata Motors Individual


Sr.


Ltd.)

29. Shri. Mukund Toka Individual

30. Shri. Anil Kelkar Individual

31. Shri. S. A. Patil Individual

32. Shri. M.C. Walke MSECTL, STU

33. Shri. Dheeraj Tilwani Individual

34. Senior Adv. Gaurav Panchnanda MSEDCL

35. Adv. Rahul Sinha Advocate of MSEDCL

36. Shri. C.L. Kale Individual

37. Shri. Nitesh Chhajlr Individual

38. Shri. Atul Bachikan Ernst & Young

39. Shri. N.V. Bhandari BEST

40. Shri. N.P. Jagaldas BEST

41. Shri. M.A.Q. Siddiqui MSETCL

42. Shri. P.P. Vaidya BEST

43. Shri. A.R. Talegaonkar BEST

44. Shri. K. Vinodraj BEST

45. Shri. A.V. Kadam BEST

46. Shri. S.D. Pawar BEST

47. Shri. V.M. Kamat BEST

48. Shri. R.M. Pradhan BEST

49. Shri. S.P. Goswami BEST

50. Shri. Jayant Kulkarni MSLDC

51. Shri. B.H. Gujrati MSLDC

52. Shri. P.M. Buradkar MSLDC

53. Shri. R.S. Kapur Tata Motors Ltd.

54. Shri. V.P. Choudhari Individual

55. Shri. G.N. Kamath President, IWPA

56. Shri. Yuvaraj Ingale Individual

57. Shri. S .Ghosh Tata Power Company Ltd.

58. Shri. Manoj Vyas Mittals Group

59. Shri. Ashish Ravikiran A C Ventures

60. Shri. Arshivan Bhatnagar A C Ventures

61. Shri. Amit Mittal IMaCS

62. Shri. Himanshu Chawla IMaCS

63. Shri. Prasad G. Narnaware Individual

64. Shri. Aditya Malpa Feedback Infra

65. Shri. Nilesh C. Potphade Individual

66. Shri. Pillai Ramchandran Individual

67. Shri. Sharad Anant Bakra Individual


Sr.


68. Shri. Ann Josey Individual

69. Shri. Ujvala Chavan Tata Power Company Ltd.

70. Smt. Laxmi Dodeja Tata Power Company Ltd.

71. Shri. B.N. Khosale Individual

72. Shri. U.S. Bhagat Individual

73. Shri. P.P Tendulkar Individual

74. Shri. Dayanand Suryavanshi Individual

75. Shri. S.D. Priolkar Mahindra & Mahindra Ltd.

76. Shri. Patel Mehuln Mahindra & Mahindra Ltd.

77. Shri. Polash Das PXIL

78. Shri. Himanshu Jadavn PXIL

79. Smt. Deepali Burnse Jindal

80. Shri. N.S.Q. Murty Jindal

81. Shri. C.R. Vishwanathan Kenersys India

82. Shri. R.S. Guralikar MSETCL

83. Shri. George John Individual

84. Shri. N.M. Kumar Individual

85. Shri. R. Shrivastava Individual

86. Shri. Karn Pallav Individual

87. Shri. Mahesh .S. Individual

88. Shri. R.S. Dayal Individual

89. Shri. S.C. Gupte Individual

90. Shri. T.N. Agarwal TNA & Co.

91. Shri. Satish S. Shah TNA & Co.

92. Shri. Girish Rane IEX

93. Shri. Rajiv Mesty JSW PTC

94. Shri. UdayKamat Yash Agro Energy

95. Smt. Raksha Gala Individual

96. Shri. Trimukhe GS MADC

97. Shri. Jayant Agarwal MADC

98. Shri. M. Deshpande Kirloskar Oil Engines Limited (KOEL)

99. Shri. Ajay Utsav Kirloskar Oil Engines Limited (KOEL)

100. Shri. Ashish IEX

101. Shri. Anuj Shateria ASPL

102. Shri. Sandesh Keer Finolex Industries Ltd.

103. Shri. Ravindra Sanghvi MSEDCL

104. Smt. Bridgit Hartland Johnson Energie Dynamique Pvt. Ltd.

105. Shri. Prashant Khenkhoja Global Energy


Sr.


106. Shri. P.S. Kang JSW Energy

107. Shri. Siddartha Bhargava Kiran Energy

108. Shri. Lio Ambooken Ernst & Young

109. Shri. Nikhil Ved Prakash GEPL

110. Shri. Pradeep Kumar Individual

111. Shri. Ashish Chandrana Individual

112. Shri. Kuldeep Kulkarni .H SRSL

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