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It is contended further by the petitioners that the Commission adopted proposal/petition submitted by the GEB mechanically, more particularly in the background of adoption of such proposal by A.P. State Electricity Regulatory Commission. In the State of Andhra Pradesh, A.P. Electricity Board had made such proposal and the same was adopted by the A.P. State Electricity Regulatory Commission. The decision of the A.P. State Electricity Regulatory Commission was assailed in the High Court of Andhra Pradesh invoking jurisdiction of the High Court under Articles 226 and 227 of the Constitution. The High Court ultimately reversed the decision of the A.P. State Electricity Regulatory Commission. According to the petitioners, though decision of A.P.High Court dated 8th February, 2002 was available with the Commission, the Commission passed the impugned order in the form of declaration simplicitor. Special Leave Petition filed before the Apex Court by the licensee of the State of Andhra Pradesh against the said judgment of Andhra Pradesh High Court is pending before the Apex Court. The Court is informed that the Apex Court has not granted any formal stay against the order of the Andhra Pradesh High Court.

True it is that it was possible for GERC to conclude positively that Grid Support would fall in the category of ?STransmission?? and therefore, transmission charges can be levied, then, the GERC would not have left vital areas open by postponing the finding on these areas. Therefore, it is submitted that the declaration simplicitor given by the GERC while passing the impugned order cannot sustain as it makes the order without jurisdiction. No finding on facts or data provided is recorded. The nature of order of making declaration has made the order vulnerable and therefore, the same has been challenged before this Court, challenging the jurisdiction after filing of the first petition in the year 2004. GERC has framed Regulation 62 of Gujarat Electricity Regulatory Commission [Terms and Conditions of Tariff] Regulations, 2005 and the said Regulation confers power to determine the charges on account of the service rendered by the Utility to the consumer, e.g. Grid Support Charges and the petitioners, therefore, have prayed that this enactment, being contrary to law be held as ultra vires, null and void. Considering the nature of relief prayed in the petitions, learned counsel appearing for the other side has fairly submitted that the respondent does not press the plea as to jurisdiction of this Court for challenging the impugned order as well as legality and validity of the Regulation and does not insist for an order of dismissal of the petitions observing that the petitioner ought to have approached the appellate authority for challenging the impugned order of the GERC.

Sample Letter inviting objectors for public hearing.

5.1 Relevant abstract from CBIP Mannual on Transformers for No Load Losses.??

The order under challenge says that the petition filed by the GEB is maintainable and POC can be levied under the Central Act and Gujarat Act. Such declaration is given when GEB had ceased to exist and was unbundled into 7 entities. There is no finding as to which entity out of 7 was entitled to have Parallel Operation Charges and which entity can be said to have provided service of grid support. The declaration simplicitor is given by the GERC saying that the support extended by the grid to CPP synchronized with it has to be identified and qualified. The GEB was asked to furnish the estimate of cost being incurred by it for providing purported services to CPPs and directed to conduct necessary study covering these areas. The petitioners are aggrieved by the Commission's declaration that the petition filed by GEB is legally maintainable and also on the finding that POC can be levied. This declaration made by the GERC, according to the petitioners is without jurisdiction. On this count, lengthy arguments have been advanced from the side of the petitioners. However, they can be summarized as under:-

When this Court is examining the issue whether GERC could have assumed jurisdiction and whether assumption of such jurisdiction and making declaratory order by itself makes the order bad are also relevant questions. It is necessary to evaluate the entire order and formal finding recorded. Undisputedly, the GERC is not conferred power or jurisdiction of a Court like Civil Court or High Court. As per the settled legal position, even Civil Court and High Court are refusing relief if relief of declaration simplicitor is asked for want of any consequential relief. In number of cases, relief of declaration has been refused when it is found that the petitioner is not entitled to consequential relief prayed as consequential relief to the declaration sought for. In the present case, GERC has specifically decided that this is a case where more study is required to be made and concrete date, unless is produced before the GERC, it will not be possible for GERC to enter into the details qua rate that can be levied as POC. Hypothetically, in the second application that has been filed and pending at present with the GERC, the petitioners, if are able to uproot the justification by raising demand from 7.5% of demand charges placed by erstwhile GEB, then, what fruitful will remain in declaratory relief granted by the impugned order is a question which needs to be considered. So relief of declaration simplicitor could not have been granted unless GERC was able to conclude positively on strength of the evidence and data available that POC would fall in the category of transmission tariff and total revenue generated as transmission tariff by erstwhile GEB is required to be held inadequate and this can be taken care of saying that by increasing some more revenue qua expenditure and costs in carrying out transmission activity and that can be compensated to some extent from CPPs running parallel to the grid. Reasons are also required to be noted that they should be charged at a particular rate qua demand charge or in any other manner or method, because, prima facie, it appears that demand charge perhaps has no direct relevance if the justification of various tariff is scanned closely. A relief specifically prayed, if is not found acceptable on any ground either on merits or on account of law, then, non-grant of such relief has an effect of dismissal of prayer to grant that particular part of the relief. The relief prayed by the erstwhile GEB in reference to POC as a consequential relief was not found acceptable. Undisputedly, GERC could have reached to a conclusion that on available data and the study placed, erstwhile GEB can recover POC not at the rate of 50% of demand charge as prayed, but it may recover such charge at a particular rate lesser than 50% actually demanded, but even that jurisdiction has not been exercised. So, it is possible to argue and also infer that as such, after the order passed in suo motu proceedings, erstwhile GEB in haste decided to rush to the GERC with a petition being Case No. 256 of 2000. But it ultimately failed to justify the claim on merits. In this fact situation, GERC ought to have dismissed the petition by holding that for want of justification qua consequential relief prayed, the GERC is not inclined to grant relief of declaration simplicitor as it has no jurisdiction like Civil Court or High Court. GERC conferred privilege to erstwhile GEB which is now GETCO, to approach the GERC-Commission again with study details and other relevant data. The finding under challenge, thus, appears to be the result which may seriously prejudice the petitioner-CPPs in the second petition, because, Regulation purportedly framed by GERC under Section 45[2], 61 and 62 read with Section 181 of Electricity Act, 2003, that is, part of Regulation 62 of Gujarat Electricity Regulatory Commission [Terms and Conditions of Tariff] Regulations, 2005 after the order under challenge, has moulded legal situation to some extent. There may not be any merit in the submission made on behalf of the petitioner-CPPs that surplus electricity generated, obviously flows into the grid system and State Transmission Utility automatically gets indirect support in maintaining frequency on account of free flow of electricity. Such possibility may be cropped up as and when there is surplus generation of CPPs. It is claimed by the State Transmission Utilities that they do not require such electricity. On the contrary, it is submitted that by taking such electricity absorbing excess generation, State Transmission Utilities are providing facilities to CPPs indirectly. Argument advanced does not sound either logical or acceptable. Mere logical argument normally should not be accepted by a Court of law when the same is not found sound on the facts available. So, the Court is not inclined to accept the argument that CPPs are free not to inject such supply and install equipment to control the flow of electricity. True it is that CPPs may be conferred with such privilege and if the State Transmission Utility so decides or desires, whether it would be legally possible for the State Transmission Utilities to argue that as they have been conferred with such privilege to CPPs, they will also lend grid support if State Transmission Utility has surplus electricity. The answer would be in the negative. Of course, the State Transmission Utilities are under statutory obligation.