1 2025:CGHC:31195-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 2712 of 2023 Bharat Aluminium Company Limited, through its Authorised Representative Mr. Amber Seth Siddiqui, Dy. Manager (Legal) Aluminum Sadan, Core-6, Scope Office Complex, 7, Lodhi Road, New Delhi- 110003 and its Plant at Balco Nagar, Korba (Chhattisgarh) 495684 ... Petitioner versus 1 - Chhattisgarh State Electricity Regulatory Commission Irrigation Colony, Shanti Nagar, Raipur Chhattisgarh- 492001 2 - Chhattisgarh State Power Distribution Company Limited Vidhyut Sewa Bhawan, 4th Floor, Danganiya, Raipur (C.G.) 492013 ... Respondents For Petitioner : Mr. Hemant Singh, Ms. Supriya Rastogi and Mr. Gopal Swaroop Gupta, Advocates For Respondent No.1 : Mr. Animesh Tiwari, Advocate For Respondent No.2 : Mr. Naman Nagrath, Senior Advocate assisted by Mr. Ayush Singh Solanki, Adv. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Order on Board Per Ramesh Sinha, C.J. 08.07.2025 1. Heard Mr. Hemant Singh, Ms. Supriya Rastogi and Mr. Gopal Swaroop Gupta, learned counsel for the petitioner. Also heard Mr. Animesh Tiwari, learned counsel, appearing for respondent No.1 and Mr. Naman Nagrath, Senior Advocate assisted by Mr. Ayush ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2 Singh Solanki, learned counsel, appearing for respondent No.2. 2. The present petition has been filed by the petitioner under Article 226 of the Constitution of India, seeking following reliefs :- “a) Issue appropriate writ, order(s), direction(s), setting aside Regulation 11.4 of the Chhattisgarh State Electricity (Renewable Purchase Obligation and REC framework Implementation) Regulations, 2021, to the extent it requires a captive generating plant to pay cross subsidy surcharge on mandatory purchase of renewable energy in terms of the Regulation 3 and 4 of the aforesaid Regulations, 2021; b) Issue appropriate writ, order(s), direction(s), setting aside/ reading down Regulation 33(6)(b)(i) of the Chhattisgarh State Electricity Regulatory Commission (Connectivity and Intra-State Open Access) Regulations, 2011, to the extent it requires a captive generating plant to pay cross subsidy surcharge on mandatory purchase of renewable energy in terms of the Chhattisgarh State Electricity (Renewable Purchase Obligation and REC framework Implementation) Regulations, 2021; c) Declare that Captive Generating Plants/ Captive Users are exempted from levy and imposition of Cross Subsidy Surcharge for availing open access towards fulfillment of mandatory renewable purchase obligation, in terms of the Electricity Act, 2003; d) Quash/ set aside the Impugned Tariff Orders dated 02.08.2021, 13.04.2022 and 28.03.2023 for FY 2021-22, FY 2022-23 and FY 2023-24 respectively, to the extent it requires a captive generating plant to pay cross subsidy surcharge for availing open access towards mandatory purchase of renewable energy in 3 terms of the Chhattisgarh State Electricity (Renewable Purchase Obligation and REC framework Implementation) Regulations, 2021; and e) Quash the invoices raised by the Respondents upon the Petitioner for levy of CSS for availing open access towards mandatory purchase of RE power for fulfillment of RPO norms in terms of RPO Regulations, 2021; f) Consequently, direct the Respondents to refund the CSS to the tune of Rs. 18.57 Crores paid by the Petitioner, as detailed in Annexure 7 of the present petition, alongwith interest; and g) Pass any further appropriate writ, order, direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.” 3. The Petitioner - Bharat Aluminium Company Limited (BALCO), is a company incorporated under Companies Act, 1956 and is engaged in manufacturing of Aluminium, The Petitioner is a High Power Intensive Industry and has set up various Power Plants and Captive Power Plants in the State of Chhattisgarh. Petitioner has established a Captive Power Plant under Section 9 of the Electricity Act, 2003 (for short ‘EA, 2003’ having an installed capacity of 2010 MW [270 MW (now not in operation), 540 MW and 1200 MW] in the Chhattisgarh, for the purpose of carrying electricity to the destination of its own use or its captive users. 4. By way of the present Writ Petition preferred under Article 226 of the Constitution of India, the Petitioner inter alia challenges the Chhattisgarh State Electricity Regulatory Commission 4 (Renewable Purchase Obligation and REC framework Implementation) Regulations, 2021 ("CSERC RPO Regulations"), which under Regulation 11.4 ("Impugned Regulation") provides for imposition of Cross Subsidy Surcharge ("CSS") on the mandatory purchase of renewable energy by the Petitioner, in terms of Section 86(1)(e) of the EA, 2003. The aforesaid impugned Regulation 11.4 provides for the payment of Cross Subsidy Surcharge (CSS), for open access by consumers over 1 MW and above, including imposition/ levy of CSS upon a consumer (including captive consumer/ CU having its own Captive Generating Plant/ CGP) availing renewable power for fulfillment of Renewable Purchase Obligation ("RPO"). As a result, the Petitioner is aggrieved with the fastening of additional liability of CSS upon CUs towards mandatory purchase of renewable energy, so as to meet their RPO under the CSERC RPO Regulations. 5. At the very outset, before getting into the merits of the instant case, it is submitted by learned counsel, appearing for the respondents that the instant petition is liable to be dismissed on the preliminary issue of maintainability as the scope of the instant petition is barred by the application of res judicata. It has been further submitted that the issue with regards to levying of Cross Subsidy Surcharge for the consumer procuring power other than distribution licensee has already been considered and upheld by Hon'ble Supreme Court in the matter of 'M/s Sesa Sterlite Ltd. 5 US. Orissa Electricity Regulatory Commission & Ors, wherein the Hon'ble Supreme Court has held that Cross Subsidy is a Compensation to the distribution licensee irrespective of the fact whether its line is used or not, in view of the fact that, but for the Open Access, the consumer would pay tariff applicable for supply which would include an element of Cross Subsidy Surcharge on certain other categories of consumers compensation. 6. It has been also submitted by learned counsel for the respondents that Petitioner herein had previously challenged the vires of the Regulation 33(6)(b) of CSERC (Connectivity and Intra-State Open Access) Regulations 2011 itself, which is charging section for levy and computation of Cross subsidy surcharge, before the this Court in WPC No. 1084 of 2017 and the said writ petition was dismissed without granting any relief to the petitioner vide order dated 11.02.2020. Copy of the order dated 11.02.2020 passed by this Court in WPC No. 1084 of 2017 is annexed herein as ANNEXURE R2/1. It is further submitted that the Petitioner has challenged the order passed by the Hon'ble High Court before the Hon'ble Supreme Court which is still pending however, the Hon'ble Supreme Court has not granted any relief to the Petitioner till date. The challenge to the above order passed by this Hon'ble Court pending before Hon'ble Supreme Court is registered as SLP Civil No. 4013 of 2021. It has been contended that the Petitioner has not approached this Hon’ble Court with clean hands as the petitioner has deliberately concealed the crucial information that 6 the order passed by this Hon’ble Court has been challenged before the Hon’ble Supreme Court vide SLP Civil No. 4013 of 2021 and same is pending consideration, therefore, on this ground alone, the instant petition is liable to be dismissed on the threshold. 7. On the other hand, learned counsel for the Petitioner / BALCO submitted that the above contention of the respondents is completely erroneous and misleading as the Petitioner in the earlier writ petition has challenged the manner of computation of CSS, wherein in the present petition, the Petitioner is challenging the ability to levy CSS to the extent of open access availed for fulfilling RPO norms. Hence, the issues and prayers are completely different and thus, the contentions of the respondents have no merits and deserve to be rejected. 8. Having heard rival contentions made by learned counsel for the parties and having perused the materials available on record it is apparent that the Petitioner had earlier filed a writ petition before this Court being WPC No.1084 of 2017, wherein vires of the Regulation No. 33(6)(b)(iii) of the CERC (Connectivity and Intra- State Open Access) Regulations, 2011 framed by the Respondent No.1 - Chhattisgarh State Electricity Regulatory Commission in exercise of the power under Section 181 of the EA, 2003 was put to challenge and it was contended that the said Regulation is ultra vires to the EA, 2003; contrary to the Tariff Policy notified by the Central Government under Section 3 of the EA, 2003 and also 7 violative of Part III of the Constitution of India. This Court, after detailed consideration of the scheme and object of the Act, dismissed the said writ petition vide order 11.02.2020, upholding the regulatory competence of the CSERC and the legality of Regulation 33(6)(b). This prior judgment conclusively determined the legal character of the CSS levy on captive users availing open access. 9. The petitioner has failed to disclose in the present writ petition that the validity of the same provision has already been tested and rejected in WPC 1084/2017. This amounts to material suppression. The Hon’ble Supreme Court in numerous pronouncements has held that a litigant who suppresses material facts is not entitled to any discretionary relief. Moreover, judicial review under Article 226 does not permit successive rounds of litigation on identical issues by restructuring the challenge without substantial change in facts or legal position. 10. It is also an admitted position that the judgment in WPC No. 1084/2017 is under challenge before the Hon’ble Supreme Court by way of Special Leave Petition (Civil) No. 4013 of 2021, which is still pending consideration. In view of the pendency of the matter before the Apex Court and the finality accorded to the judgment of this Court in WPC 1084/2017, the present writ petition is clearly not maintainable. It is a trite law that once a matter is sub judice before the Hon’ble Supreme Court, re-litigation on the same issue before the High Court is impermissible. 8 11. This Court further finds that the petitioner’s attempt to isolate renewable power procurement under RPO for exemption from CSS does not find favour either in the regulatory scheme or in judicial precedent. Section 42(2), while providing an exemption to captive users, does not automatically extend such exemption to all forms of procurement through open access, especially when not from own captive sources. Fulfillment of RPO is a statutory obligation, but the mode of fulfillment is a matter of commercial discretion. If a consumer opts for open access from third-party sources rather than RECs or captive generation, it remains within the regulatory framework including CSS. 12. For the aforementioned reasons, the writ petition, being devoid of merit, is liable to be and is hereby dismissed. The issues raised have already been adjudicated and cannot be reopened on segmented grounds. The suppression of earlier litigation further dis-entitles the Petitioner from relief under Article 226 of the Constitution of India. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Chandra