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Judgment
Heard Mr. B. Vishnu Rao, learned counsel appearing for the appellant/writ petitioner and Mr. N. Sreedhar Reddy, learned Standing Counsel for Southern Power Distribution Company of Telangana Limited (TGSPDCL) appearing for respondent Nos.1 to 4 and 7.
The present appeal lays a challenge to the order dated 29.07.2026 passed by the learned writ Court, in WP No.13041 of 2026.
The aforesaid writ petition was filed by the appellant challenging the letter dated 11.02.2026 issued by respondent No.2-Chief General Manager (Revenue), TGSPDCL, Hyderabad, for payment of Rs.60,71,017/- towards Cross Subsidy Surcharge (CSS) as well as prior identical and consequential demands raised on the appellant for the period mentioned therein. The appellant had taken a plea that TGSPDCL is not entitled to recover any CSS from them and to set aside the said letter dated 11.02.2026. After hearing the learned counsel for the parties, vide order under appeal dated 29.07.2026, the learned writ Court upheld the demand of Rs.60,71,017/- towards CSS vide letter dated 11.02.2026 impugned in the aforesaid writ petition, holding that the appellant had failed to produce the requisite authorization under Section 43-A (1) (C) of the Electricity Supply Act, 1948, though it had availed power supply prior to the Electricity Act, 2003. The learned writ Court in fact also held that the aforesaid writ petition was not maintainable as TGSPDCL had not been impleaded as a party.
A little background needs to be referred to hereinafter. On the question of CSS, in WP No.14918 of 2006 and batch including WP No.13138 of 2006 which was filed by the writ petitioner along with others, vide common order dated 19.12.2023, the Coordinate Bench of this Court quashed the demand notices issued for payment of the alleged CSS while dismissing WP No.8252 of 2008 filed by TGSPDCL and other companies. Against the said order dated 19.12.2023 dismissing WP No.8252 of 2008, TGSPDCL filed Special Leave Petition (Civil) Diary No.25649 of 2024 which in turn was dismissed by the Hon'ble Supreme Court vide order dated 10.09.2024. Thereafter, review petitions have been filed by TGSPDCL in the respective writ petitions and are pending before this Court. The letter dated 11.02.2026 was separately issued against the appellant charging Rs.60,71,017/- towards the alleged CSS. Before that, the appellant laid a challenge vide WP No.11455 of 2025 to the demand notice dated 24.03.2025 in respect of HT SC.No.SEC531 asking it to pay Rs.51,95,564/- towards the alleged CSS. Vide order dated 09.01.2026, the learned writ Court disposed of the said writ petition in the following manner:
“When the matter is taken up for hearing, learned counsel for petitioner submitted that the issue raised in this Writ Petition is squarely covered by the order passed by this Court in W.P.No.7990 of 2025, dated 03.09.2025 and therefore, the same order may be passed in this writ petition as well. The operative portion of the said order reads as under:
“5.Having regard to the submissions made by learned counsel for both the parties and without expressing any opinion on the merits of the case, this writ petition is disposed of by granting liberty to the petitioners to submit their objections to the notice dated 03.02.2025 before respondent No.3 within a period of two weeks from the date of receipt of a copy of this order. Upon receipt of such objections, the respondents shall consider the same and, after affording a personal hearing opportunity to the petitioners, pass an appropriate order in accordance with law within two weeks thereafter. Till such time, no coercive action be taken against the petitioners. No costs.”
Accordingly, in terms of the order passed by this Court in W.P.No.7990 of 2025, dated 03.09.2025, and for the reasons alike and without expressing any opinion on the merits of the case, this writ petition is disposed of by granting liberty to the petitioner firm to submit their objections to the notice dated 24.03.2025 before respondent No.3 within a period of two weeks from the date of receipt of a copy of this order. Upon receipt of such objections, the respondents shall consider the same and, after affording a personal hearing opportunity to the petitioner firm, pass an appropriate order in accordance with law within two weeks thereafter. Till such time, no coercive action be taken against the petitioner firm. No costs.”
However, no such objections were filed by the appellant-writ petitioner which lead to issuance of the letter dated 11.02.2026 by TGSPDCL for payment of Rs.60,71,017/- in six instalments as per the schedule given thereunder. Though the appellant assailed it in WP No.13041 of 2026, it did not implead TGSPDCL. An objection was taken on that ground besides on merits by the learned standing counsel for TGSPDCL. The learned writ Court dismissed the said writ petition not only on the ground of maintainability but also proceeded to hold that the Removal of Difficulties (Second) Order, 2005, would not enure to the benefit of the appellant. Therefore, there were no grounds to interfere with the letter dated 11.02.2025. The operative part of the order under appeal dated 29.07.2026 on both points is extracted hereunder:
“From a perusal of the judgment of the Hon’ble Supreme Court in Chief Conservator of Forests, Govt. of Andhra Pradesh v. Collector, this Court has no hesitation to conclude that learned Standing Counsel has rightly contended that Respondents 1 to 4 are only designated officials of TGSPDCL and not legal entities and in the absence of said Company being arrayed as a party respondent, the above writ petition is not maintainable. This Court considered the judgment in Writ Appeal No. 791 of 2023 to contend that designated officials of TGSPDCL have filed the said Writ Appeal which was entertained by the Division Bench of this Court. However, the said judgment would be of no help to petitioner in as much as the Division Bench of this Court has not gone into the issue of maintainability or has decided that appellants therein were juristic persons to sue or be sued. Therefore, in the absence of arraying proper parties to the writ petition, the said judgment is not helpful to petitioner. This Court, therefore, holds that the Writ Petition against Respondents 1 to 4 is not maintainable on the ground that they are not juristic persons.
Further, Removal of Difficulties (Second) Order, 2005 would disclose that exemption from payment of C.S.S. is only to those consumers, who have availed power supply from the generators having valid authorisation issued under Section 43-A (1) (C) of Electricity Supply Act, 1948, prior to Electricity Act, 2003 coming into force. Though petitioner contended that they had availed power supply from the 6th Respondent-generator prior to Electricity Act, 2003 coming into force, they could not produce any such authorisation of its generator nor did they file any document to show that they were drawing power from the 6th respondent generator prior to Electricity Act, 2003 coming into force for the purpose of claiming exemption from payment of C.S.S. under Removal of Difficulties (Second) Order, 2005. In the absence of the same, this Court holds that Removal of Difficulties (Second) Order, 2005 would not enure to the benefit of petitioner. There are no grounds to interfere with the impugned demand notices, therefore, the Writ Petition is liable to be dismissed.
The Writ Petition is accordingly, dismissed."
Being aggrieved by the same, the writ petitioner has preferred this appeal.
Learned counsel for the appellant-writ petitioner has sought to substantiate the challenge on the grounds that the order under appeal dated 29.07.2026 amounted to re-adjudication of a finally decided issue raised in WP No.13138 of 2006 by the learned Coordinate Bench of this Court vide common order dated 19.12.2023. The redetermination of the rate or methodology of CSS did not revive the liability as it was decided earlier. TGSPDCL could not achieve indirectly what they failed to achieve directly. The learned writ Court however, after holding that WP No.13041 of 2026 was not maintainable, went on to make observations on the merits of the letter dated 11.02.2026 assailed by the appellant which was not proper in the eye of law.
On the other hand, learned counsel for TGSPDCL submits that the appellant had failed to file any objection despite liberty granted by the learned writ Court vide order dated 09.01.2026 in WP No.11455 of 2025 filed by it challenging the demand notice 24.03.2025 which lead to issuance of the letter dated 11.02.2026 which does not suffer from any illegality or error warranting interference by the learned writ Court more so when the appellant had not been able to show that it had availed power supply from respondent No.6 generator prior to Electricity Act, 2003, came into force. He also submits that the consumers who have raised this plea on issuance of demand notices, after the common order dated 19.12.2023 passed by the learned Coordinate Bench of this Court in WP No.14918 of 2006 and batch have been directed to make 50% of the demand subject to outcome of the review petitions. In the fresh writ petitions, they have been asked to pay 50% of the demand pending outcome of the same. He submits that the appellant may be insisted upon to deposit 50% of the demand and the matter may be remanded to the learned writ Court to decide the issue on merits again.
We have considered the submissions of the learned counsel for the parties and referred to the facts which are necessary to decide the present Writ Appeal. We do not make any comment on the merits of the levy of CSS which was the subject matter of WP No.13041 of 2026 as the learned writ Court vide order dated 29.07.2026 had held the said WP as not maintainable on account of non-impleadment of TGSPDCL. However, that being a curable defect, we have allowed the prayer for impleadment of TGSPDCL in the present Writ Appeal. TGSPDCL be impleaded in the writ petition also by learned counsel for the writ petitioner.
In the facts and circumstances noted above, since the observations made on merits have been uncalled for when once the writ petition was held to be not maintainable, it would be in the fitness of things to remand the matter to the learned writ Court to decide it afresh. However, while doing so, we find substance in the submissions of the learned counsel for TGSPDCL that in parity with similar challenges pending before this Court, the appellant shall deposit 50% of the impugned demand, if not already deposited, within a period of four weeks from today. If such amount is deposited within the aforesaid period, no coercive steps be taken against the appellant-writ petitioner till the outcome of the writ petition.
The instant Writ Appeal is disposed of in the aforesaid manner. There shall be no order as to costs.
Miscellaneous applications, if any pending, shall stand closed.