JUDGMENT In all these Writ Petitions, the common question viz., whether Clause 12 of Regulation 2 of 2006 and Appendix-3 to the said Regulations are applicable to the petitioners, arises for consideration. Hence, all these Writ Petitions are heard together and being disposed of by this common judgment. 2. All the petitioners established non-conventional power generating plants and they hold separate Agreements for Wheeling/Wheeling-cum-Power Purchase, as the case may be. Such agreements were initially entered into with the A.P. State Electricity Board (for short "the APSEB") and with the creation of A.P. Transmission Corporation (for short "the APTRANSCO") under the provisions of the Andhra Pradesh Electricity Reform Act, 1998 (for short "the 1998 Act"), which came into force with effect from 29-7 -1998, these Agreements were got transferred in the name of APTRANSCO, being the successor of the APSEB. Subsequently, with the creation of four distribution companies in the State, these Companies replaced APTRANSCO in respect of the Agreements concerning their respective jurisdictions. 3. The present cases are concerned with "Banking" of the energy. The Clauses in the Agreements relating to "Banking" are almost identical. For convenience, Clause 1.1 (ii) of Article 1 of the Agreement as amended on 30-11-2000 entered into with the petitioner in Writ Petition NO.15313 of 2007 is referred to herein. It defined "Banking" as under: "1.1 (ii). Banking means keeping in reserve, the delivered energy supplied to the Board, in any Billing Month(s), in excess of the energy required to be wheeled by the Board to the Scheduled Consumers in that month, with the purpose of wheeling such excess energy in any succeeding month(s) to the Scheduled Consumers, subject to the condition specified in Article 3 of this Agreement. Such excess energy is, hereafter called 'Banked energy'." Appendix to the amended Agreement dated 30-11-2000, which contains the amendments to the definition "Scheduled Consumers" and "Banking Arrangement", is reproduced hereunder: Article No. Existing Amendment(shall be read in the place of existing Article) 1.1(xvi) Scheduled Consumers: means one Scheduled Consumers: means the or more High Tension consumers consumers of the APTRANSCO of the Board receiving power from listed in Schedule 4 attached to this the Board as detailed in the list at Agreement, receiving power from Scheduled.4 attached to this the APTRANSCO at a voltage agreement, to whom the electrical of 11 Kilo volts (KV) and above; energy from the Project is desired by to whom wheeled energy is desired the Company to be wheeled by the by the company to be wheeled Board, and every such Scheduled by the APTRANSCO, as per the Consumer shall be substantially prior approval of the APTRANSCO. owned and controlled by the same group as the Company. Explanation 1: If such Schedule Consumer is 100% owned by the Explanation: Every such consumer company, then the Schedule shall be industrial unit located in consumer is captive consumer. the state of Andhra Pradesh receiving power from the Board at 11 KV or above. Explanation 2: If such Schedule consumer is not the captive Banking arrangement shall be valid for consumer, the wheeling is entire energy year. However such banked considered as third party sales. energy would be wheeled only between Explanation 3: The APERC August to March of the succeeding year authorized APTRANSCO for and any net banked energy not subject to making changes in the list of wheeling in that year shall lapse. Scheduled Consumers. If the developer wants any change in the list of scheduled consumers, during the term of the Agreement, he shall submit such a list to APTRANSCO and get approval. APTRANSCO implements such approval taking into system exigencies. However, only two (2) amendments per Tariff year to Schedule 4 of this Agreement shall be permitted in view of the work involved in billing. Explanation 4: Every such consumer shall be a H.T. Consumer located in the State of Andhra Pradesh receiving power from the APTRANSCO at 11 KV or above, and number of consumers is limited to five per MW. Banking arrangement shall be valid for entire energy year. Explanation 4: Every such consumer shall be a H.T. Consumer located in the State of Andhra Pradesh receiving power from the APTRANSCO at 11 KV or above, and number of consumers is limited to five per MW. Banking arrangement shall be valid for entire energy year. However, such banked energy would be wheeled only between August to March of the succeeding year in regard to third party sale, and for all 12 months in case the energy is used for captive consumption, and any net banked energy not subject to wheeling in succeeding energy year shall lapse. Explanation: The energy year is from August to July of the succeeding year. 4. The Electricity Act, 2003 (for short "the 2003 Act"), which came into force with effect from 10-6-2003, repealed the Indian Electricity Act, 1910; the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998, and several State Electricity Reform Acts. However, Section 185(3) of the said Act made provisions of State Electricity Reform Acts, including the A.P. Electricity Reform Act, 1998, which are not inconsistent with the provisions of the 2003 Act, applicable to their respective States. Purporting to exercise its power under sub-section (2) of Section 42 of the said Act, the Andhra Pradesh Electricity Regulatory Commission (for short "the Commission") has made regulations, vide: Regulation NO.2 of 2005, whereby it introduced open access system subject to the various clauses contained therein. The arrangement pertaining to "Banking" under the existing Agreements has not been disturbed by the said regulation. However, the Commission framed Regulation NO.2 of 2006 with the title "Interim Balancing and Settlement Code for Open Access Transactions", wherein it sought to envisage a day-ahead wheeling schedule of energy on the basis of 15-minute time blocks, and monthly settlement of deviations, pending finalization of a comprehensive settlement system for the State pool under Availability Based Tariff (ABT) regime. Clause 12 of the said Regulations deals with "Banking", which reads as under: "12. Banking: 12.1. Clause 12 of the said Regulations deals with "Banking", which reads as under: "12. Banking: 12.1. No generators other than the Wind and Mini Hydel power generators shall be allowed the facility of banking the electricity generated by them: Provided that in the case of existing users of wheeling facility, the energy already banked as per the subsisting agreements as on the date of coming into force of this Regulation, shall be allowed to be wheeled as hitherto till the expiry of the balance period available for utilization of the banked energy: Provided, however, that in the case of generators whose cases are pending appeals in the Hon'ble High Court of Andhra Pradesh and/or the Hon'ble Supreme Court, this provision shall be applicable subject to the final decision of the High Court and/or the Supreme Court, as the case may be. 12.2. The banking facility to the Wind and Mini Hydel Power generators shall be subject to the conditions specified in Appendix-3". 5. Appendix-3 of the said Regulation contains terms and conditions for banking facility. Clause 2 (c) of the said Appendix reads thus: "Drawals shall be permitted only during the 6-month period, from July to December. The banked energy remaining unutilized as on 3151 December shall be treated as lapsed". 6. Purporting to give effect to the above reproduced Clause and the Appendix, the respondents denied the petitioners supply of energy either for their captive use or towards third party sales, as the case may be, which was banked with the respondents, with effect from 1-1-2007 on the ground that the banked energy, which was not utilized by the petitioners upto 31-12-2006 has got lapsed by operation of Clause 2(c) of Appendix-3. The long correspondence between the petitioners and the respondents having failed to settle the disputes, the petitioners filed the present Writ Petitions. The substance of the reliefs claimed by them in these Writ Petitions is that they are entitled to utilize the energy banked by them in terms of the respective Clauses in their Agreements between August and March of the succeeding year in regard to third party sale and during the entire Energy Year between August and July of the year preceding the year in which the energy was banked for captive consumption. 7. The respondents resisted the reliefs claimed by the petitioners in the Writ Petitions. 7. The respondents resisted the reliefs claimed by the petitioners in the Writ Petitions. Though detailed counter-affidavits have been filed by the respondents, in short, their bone of contention is that in view of Regulation 2 of 2006, they are bound to' implement the said Regulation and, hence, the petitioners, who admittedly failed to utilize the banked energy completely on or before 31-12-2006, are not entitled to claim the balance un utilized energy, which got automatically lapsed by operation of Clause 12 read with Appendix-3 of the said Regulation. 8. At the hearing, Sri K.Gopal Choudary, learned counsel for the petitioners, advanced the following contentions: (1) The petitioners are not consumers of open access under the provisions of the 2003 Act and, hence, neither of the two Regulations, viz Regulation 2 of 2005 or Regulation 2 of 2006, applies to the petitioners' cases; (2) The petitioners' right for banking and wheeling flows from the Agreements which provided for limited access for specific consumers and these Agreements are saved by the provisions of Section 185 of the 2003 Act; (3) Regulation- 2 of 2006 issued by the Commission is an integrated one combining accounting with banking and without implementing the accounting part of the Regulation, the respondents cannot implement only the portion relating to the banking part of the agreement. (4) Alternatively, even if Regulation 2 of 2006 is made applicable, the cases of the petitioners are excluded by proviso two to Clause 12.1 of the said Regulation; and (5) Appendix-3 to Regulation 2 of 2006 enables the petitioners to consume the banked energy from July to December of the succeeding year and there is no justification to construe the said provision as limiting consumption only during the period of July to December of the year in which the energy is banked. 9. Sri M.P.Chandramouli, Sri C.Kodanda Ram and Sri B. Adinarayana Rao, appearing for the petitioners in Writ Petition No. 17344 of 2007; Writ Petition Nos. 9. Sri M.P.Chandramouli, Sri C.Kodanda Ram and Sri B. Adinarayana Rao, appearing for the petitioners in Writ Petition No. 17344 of 2007; Writ Petition Nos. 26971 & 27961 of 2007; and Writ Petition No.4740 of 2008 respectively, supported the contentions advanced by Sri K.Gopal Choudary and submitted that the respondents cannot take away the vested rights which are saved by the provisions of the 2003 Act and that, at any rate, Regulation 2 of 2006, the application of which is exempted in respect of the generating companies - whose cases are pending before the Supreme Court under second proviso to Clause 12.1 of the said Regulation by the Commission itself - cannot be applied to the petitioners and deny the banked energy to them. 10. Sri O.Manohar Reddy, learned Standing Counsel for the respondents, opposing the contentions of the learned counsel for the petitioners, submitted that the Writ Petitions are not maintainable in view of Section 86(1)(f) of the 2003 Act, which provided for resolution of disputes by the State Commission: In support of this contention, he relied on the judgment of the Supreme Court in Gujarat Urja Vikash Nigam v. Essar Power'. He further contended that the provisions of Section 185 do not save the Agreements held by the petitioners with the respondents in view of Section 174 of the said Act. The word "subject to final decision of the High Court and/or the Supreme Court" contained in the second proviso to Clause 12.1 of Regulation 2 of 2006, contends the counsel, shall not be construed as placing fetters on immediate implementation of the said Regulation, but the same shall be understood as the implementation of Regulation being made shall be subject to the outcome of the pending cases before the Supreme Court and the High Court. 11. Let me now consider each of the contentions raised by the learned counsel for the petitioners. Re.Contentions 1 and 2: 12. The provisions of the 2003 Act introduced many changes in generation, sale, transmission and distribution of power. In the present context, it is not necessary to discuss all those changes since the dispute is confined to the right of the generating companies to bank the energy generated by them and utilize the same through the distribution net work of the distribution licensees. It will, therefore, suffice to confine consideration to the said aspect only. In the present context, it is not necessary to discuss all those changes since the dispute is confined to the right of the generating companies to bank the energy generated by them and utilize the same through the distribution net work of the distribution licensees. It will, therefore, suffice to confine consideration to the said aspect only. Part VI of the 2003 Act deals with distribution of electricity. Section 42 described the-duties of a distribution Licensee, which include the duty to develop and maintain an efficient, co-ordinates and economical distribution system by every licensee in his area of supply and to supply electricity in accordance with the provisions contained in that Act. It envisages introduction of open access in phases by the State Commission subject to such conditions, as may be specified within one year of the appointed day by it and determine the charges for wheeling having regard to the relevant factors including cross subsidies and other operational constraints. It provides for levy of surcharges and cross subsidies to open access users. The concept of open access to the distribution net work of the licensees is introduced for the first time in the 2003 I Act. However, it is an admitted fact that banking and supply of power between the petitioners and the respondents is covered by separate agreements unconnected with the provisions of the 2003 Act. Agreements were entered into starting from 1995, (in some cases in the year 1998), when the 2003 Act was not even in contemplation. The Agreements with the petitioners were first entered into under the provisions of the 1948 Act and amendments were made attar the advent of the 1998 Act. There can, therefore, be no doubt that the facility of banking and wheeling had been provided to the petitioners de hors the provisions of the 2003 Act and the Regulations made thereunder. 13. As noted hereinabove, though the 2003 Act repealed the 1910 and the 1948 Acts and the Electricity Regulatory Commission Act, 1998, Section 185(2) (a) of the said Act provided, inter alia, that anything done or any action taken or any document or instrument executed or any direction given under the repealed laws shall, insofar as it is not inconsistent with the provisions of the Act, be deemed to have been done or taken under the corresponding provisions of the Act. The Agreements entered into with the petitioners, undoubtedly, fall within the phrases "document or instrument executed under the repealed laws" used in the said provision. Significantly, Section 185(5) reinforces the saving clause contained in sub-section (2) by mandating that the effect of repeal under Section 185 shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897. 14. From a plain reading of the above mentioned provision, it is clear that unless the document or instrument executed under the repealed Act is inconsistent with the provisions of the 2003 Act, the agreements entered into by the petitioners for banking and wheeling are saved. 15. Sri O.Manoher Reddy contended that under the 2003 Act there is a complete change with respect to making tariff regulation and determination of tariff. According to him, the fact that the Commission is vested with these powers under Part-VII, unlike such powers being vested in the SEBs and the Licensees which succeeded to the SEBs under the repealed Acts, shows that the agreements entered into by the erstwhile Board/Licensees with the petitioners are inconsistent with the provisions of the 2003 Act and, hence, sub-Sections (2) and (5) of Section 185 do not come to the rescue of the petitioners. He relied on Section 174 of the 2003 Act in this regard. 16. I have carefully considered this submission of the learned Standing Counsel and not felt persuaded to accept the same. On a careful analysis of the provisions of the 2003 Act, I have not found any inconsistency with regard to the activity of wheeling and banking. Indeed, while there was no specific provision of open access under the repealed laws, a right has now been conferred on every consumer/ generating company to make use of distribution network of the Licensees as of right, of course, subject to the Regulations made by the Commission. In respect of the banking, there is no specific statutory provision contained in the said Act. It is, therefore, not possible to accept the contention of the learned Standing Counsel that the provisions of the 2003 Act are incompatible with the banking and wheeling Agreements entered into by the erstwhile dispensation with the petitioners. In respect of the banking, there is no specific statutory provision contained in the said Act. It is, therefore, not possible to accept the contention of the learned Standing Counsel that the provisions of the 2003 Act are incompatible with the banking and wheeling Agreements entered into by the erstwhile dispensation with the petitioners. That the Commission has been continuing with the policy of banking, even under the changed legal environment, is evident from Clause 12 of Regulation 2 of 2006, albeit with certain changes. The contention of the learned Standing Counsel is mainly based on the fact that the functions of tariff fixation and regulation are entrusted to the Commission. In my considered view, this change by itself cannot be treated as inconsistent between the provisions of the repealed Act and the present Act. More so, when the issue regarding Banking is not concerned with tariff fixation or tariff regulation. 17. According to Black's Law Dictionary, the expression "inconsistent" means "lacking consistency" and "not compatible with". As noticed earlier, the present enactment far from being incompatible with Banking, the Commission continued the policy of Banking even under this Act. Hence, the contention of the learned Standing Counsel that the Agreements held by the petitioners were not saved by the provisions of sub-section (2) of Section 185 of the 2003 Act, cannot be accepted. 18. In interpreting the provisions of the new enactments qua the rights vested under the repealed ones, the Courts have repeatedly held that unless the new enactment manifested an intention to destroy the rights and liabilities created by the repealed Act, such rights are saved notwithstanding the repeal of the earlier enactment. 19. In State of Pub jab v. Mohar Singh, the Supreme Court while disagreeing with the observations of Sulaiman, C.J, in Oanmal Parshatamdas v. Baburam Chhate Lal- AIR 1936 Allahabad 3 (A) - that where there is a new law which not only repeals the old law, but is substituted in place of the old law, Section 6(e) of the General Clauses Act is not applicable, observed as under: "These observations could not undoubtedly rank higher than mere 'obiter dictum' for they were not at all necessary for purposes of the case, though undoubtedly they are entitled to great respect. In agreement with this dictum of Sulaiman, C.J. , the High Court of Punjab, in its judgment in the present case, has observed that where there is a simple repeal and the legislature has either not given its thought to the matter of prosecuting old offenders, or a provision dealing with that question has been inadvertently omitted, S. 6 of the General Clauses Act will undoubtedly be attracted. But no such inadvertence can be presumed where them has been a fresh legislation on the subject and if the new Act does not deal with the matter, it may be presumed that the legislature did not deem it fit to keep alive the liability incurred under the old Act. In our opinion the approach of the High Court to the question is not quite correct. Whenever there is a repeal of an enactment; the consequences laid down in S. 6 of the General Causes Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any 'room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that S. 6 of the General Clauses Act is ruled out when there is report of an enactment followed by a fresh legislation. S. 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. It is in the light of these principles that we now proceed to examine the facts of the present case". 20. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. It is in the light of these principles that we now proceed to examine the facts of the present case". 20. In Bansidhar v. State of Rajasthan' M.N.Venkatachalaiah,J, as he then was, speaking for the Constitution Bench, while expressing a similar view as in Mohar Singh (2 supra) held as under: "When there is a repeal of a statute accompanied by re-enactment of a law on the same subject, the provisions of the new enactment would have to be looked into not for the purpose of ascertaining whether the consequences envisaged by Sec. 6 of the General Clauses Act ensued or not - Sec. 6 would indeed be attracted unless the new legislation manifests a contrary intention but only for the purpose of determining whether the provisions in the new statute indicate a different intention. Referring to the way in which such incompatibility with the preservation of old rights and liabilities is to be ascertained this Court in State of Punjab v. Mohar Singh, (1955) 1 SCR 893 : ( AIR 1955 SC 84 ) said: "Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new Law and the mere absence of a saving clause is by itself not material. The provisions of Sec. 6 of the General Clauses Act will apply to a case of repeal even if there is simultaneous enactment unless a contrary intention can be gathered from the new enactment. Of course" the consequences laid down in Section 6 of, the Act will apply only when a statute or regulation having the force of a statute is actually repealed.” 21. In Southern Petrochemical Industries Co. Of course" the consequences laid down in Section 6 of, the Act will apply only when a statute or regulation having the force of a statute is actually repealed.” 21. In Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ET10, the Supreme Court while considering the effect of T.N. Tax on Consumption or Sale of Electricity Act, 2003, which repealed the Tamil Nadu Electricity Duty Act, 1939 and the Tamil Nadu Electricity (Taxation on Consumption) Act, 1962, held that exemption from tax is a vested right and such a right having been accrued or vested, the same can be taken away only by reason of a Statute and not otherwise and that a notification which was issued under the repealed Acts would continue to govern unless the same is repealed. 22. The legal proposition that could be culled out from the above authoritative pronouncements of the Supreme Court is that unless the new enactment expressly or by necessary implication invalidates the acts done or takes away the rights vested, acquired or accrued under the repealed enactment, those acts done continue to be valid and such rights are saved notwithstanding the repeal of the earlier enactment. The 2003 Act, instead of taking away, expressly recognized such rights under sub-section (5) of Section 185 of the said Act by specific incorporation of Section 6 of the General Clauses Act, which reads as under: "6. The 2003 Act, instead of taking away, expressly recognized such rights under sub-section (5) of Section 185 of the said Act by specific incorporation of Section 6 of the General Clauses Act, which reads as under: "6. Effect of repeal: Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not - (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or any thing duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed". Banking and right to utilize the power so banked is a valuable right accrued to the petitioners. Such a right conferred on the petitioners and the obligation incurred by the respondents under the Agreements shall continue till the expiry of the period for which the Agreements were entered into. 23. On a careful consideration of the provisions of the 2003 Act and the settled legal position as discussed above, I am of the considered view that the Agreements held by the petitioners not being inconsistent with the provisions of the 2003 Act are saved by the provisions of sub-sections (2) and (5) of Section 185 of the saia Act. These contentions are answered accordingly. Re-Contention No.3: 24. In view of my findings on Contentions 1 and 2, Regulation 2 of 2006 will not affect the rights of the petitioners under the existing Agreements. 25. However, the learned counsel for the petitioners advanced alternative contention based on the second proviso to Clause 12.1, which was reproduced hereinabove. These contentions are answered accordingly. Re-Contention No.3: 24. In view of my findings on Contentions 1 and 2, Regulation 2 of 2006 will not affect the rights of the petitioners under the existing Agreements. 25. However, the learned counsel for the petitioners advanced alternative contention based on the second proviso to Clause 12.1, which was reproduced hereinabove. In the said proviso it is stated that in the case of generators, whose cases are pending appeal in the High Court and/or the Supreme Court, the provision relating to banking shall be applicable subject to the final decision of the High Court and/or the Supreme Court. 26. To consider the true purport of this Clause, it is necessary to refer to the brief background of the pending cases. After the Commission was constituted under the 1998 Act, it attempted to disturb the wheeling cum-power purchase agreements entered into by the APSEB with the independent power generating companies, including the non-conventional energy developers, like the petitioners. Purporting to exercise its powers under the said Act, it made tariff order for the year 2001-02 on the proposals made by the APTRANSCO and the Distribution Companies, wherein it, inter alia, increased the wheeling charges over and above what was envisaged in the respective power purchase/wheeling agreements. All the generating companies, including the petitioners, assailed the validity of the said orders on multiple grounds. A Division Bench of this Court struck down the said order on several grounds, including the one of lack of jurisdiction of the Commission constituted under the 1998 Act to fix the tariffs, which was held to be a legislative function. The Division Bench also held that under the provisions of the 1998 Act, transfer schemes contained therein and under Section 4 read with Section 8 of the A. P. General Clauses Act all the agreements were saved. The said Judgment was carried in appeals by the APTRANSCO and the respondents. As a result of the interlocutory orders passed in the Civil Appeals pending before the Supreme Court, the APTRANSCO and the respondents are disabled from giving effect to the tariff order of the Commission and the pre-existing wheeling charges under the agreements are being paid by the generating companies apart from certain bank guarantees furnished in pursuance of the interim orders passed by this Court during the pendency of the Civil Miscellaneous Appeals before this Court. In this factual background, the second proviso to Clause 12.1 is required to be construed. 27. The Commission is conscious of the fact that the existing Agreements are the subject matter of the appeals before the Supreme Court. The question whether the provision such as the one contained in Clause 12 of Regulation 2 of 2006 could be made in abrogation of the relevant Clause in the existing agreement depends upon the adjudication of the issues in the Civil Appeals pending before the Supreme Court. Therefore, though the tariff order, which was the subject matter of Civil Appeals, was made under the provisions of the 1998 Act and Regulation 2 of 2006 is made under the 2003 Act, the Commission was circumspect in adding the second proviso, because though the issue relating to banking was not directly in issue before the Supreme Court, its power to vary the terms in the existing Agreements is very much an issue pending before it. The Commission was, therefore, evidently not prepared to take the risk of enforcing the Regulation relating to banking, which is substantially at variance with the existing Clauses in the Agreements. In this connection it is worthwhile to notice that by Clause 12 the entire right of banking vested under the agreements entered in favour of non-conventional energy developers other than Wind and Mini Hydel power generators is completely taken away. The Commission, therefore, made a cautious approach in applying this Regulation to the generating companies whose cases are pending before the Supreme Court. The very words "this provision shall be applicable subject to the final decision of the High Court and/or the Supreme Court, as the case may be" contained in the said proviso clearly mean that the very application of the provision is subject to the final decision. If the Commission intended otherwise, it would have used different expression such as "implementation of this Regulation shall be subject to the final decision". If this Regulation is to be implemented irrespective of pendency of the cases before the Supreme Court/High Court, without waiting for their outcome, in my considered opinion, there was no need for this proviso at all. If the generating companies ultimately succeeded before the Supreme Court, they would have been entitled to all the consequential benefits flowing from the judgment irrespective of whether the Commission stated so in the Regulation or not. If the generating companies ultimately succeeded before the Supreme Court, they would have been entitled to all the consequential benefits flowing from the judgment irrespective of whether the Commission stated so in the Regulation or not. The fact that the Commission made a specific provision that the application of Regulation shall be applicable subject to the final decision leaves no doubt in my mind that the Commission wanted to apply the Regulation to the extent of banking after adjudication of the disputes pending before the Supreme Court/High Court. 28. Sri O.Manohar Reddy, learned Standing Counsel, contended that the Civil Appeals pending before the Supreme Court are concerned with the power of the Commission to fix tariff under the 1998 Act and the instant Regulation having been made under the provisions of the 2003 Act, the issues in the said Appeals have no bearing on the present Regulation. I find no substance in this contention because if the issues were unconnected, there was no need for the Commission to incorporate the second proviso to Clause 12 of Regulation 2 of 2006. Irrespective of whether the powers were exercised under the 1998 Act or the 2003 Act, the fact remains that those powers were exercised by the Commission in respect of the aspects, which arise under the existing Agreements. In that view of the matter, the Commission, in its wisdom, made the applicability of the Regulation subject to the final decision of the "High Court/Supreme Court" . 29. The word "subject to approval of the Government" contained in Regulation 28(d) of the Madras Housing Board Service Regulations fell for consideration of the Supreme Court in K.R.C.S. Balakrishna Chetty and Sons and Co. v. State of Madras5. The said words were interpreted as meaning "conditional upon the approval of the Government", that is, that unless that approval is given by the Government the relaxation would not be valid because the regulations themselves had been put into effect after obtaining the approval of the State Government earlier. This judgment completely fortifies my view on the construction of the second proviso to Clause 12.1 of Regulation 2 of 2006 that the Regulation will only come into force after the decision of the "High Court/Supreme Court" and not earlier thereto. 30. This judgment completely fortifies my view on the construction of the second proviso to Clause 12.1 of Regulation 2 of 2006 that the Regulation will only come into force after the decision of the "High Court/Supreme Court" and not earlier thereto. 30. The learned Standing Counsel relied on the judgment of the Supreme Court in Ravi Vimal Krishna v. State of Bihar, in support of his contention that implementation of the Regulation can be done before the cases are decided by the "High Court Supreme Court". I have carefully gone through the said judgment. In the said case, the Supreme Court dealt with the provisions of the Patna Municipal Corporation Act, 1951. Under Section 151 of the said Act, after hearing the objections, the authority concerned is entitled to make an assessment list against which an appeal lies under Section 152. Section 153, which contains the words "subject to" provides that every valuation made by the Chief Executive Officer shall, subject to the provisions of Sections 151 and 152, be final. The Supreme Court repelled the contention of the appellant before it that unless the appeal filed against the valuation is disposed of, such a valuation cannot be enforced or implemented. In doing so, the Supreme Court referred to Section 138 (2) of the said Act under which every valuation and assessment list shall be valid from the date on which the list takes effect in the Corporation and until the first day of the quarter next following the completion of a new list. On an analysis of the said provision, the Supreme Court held that the assessment list as prepared is valid and is unaffected by the mere filing of an application under Section 150; and that if the result of the application is in favour of the owner, the assessment list must be amended to give effect to such result. It further held that unless the application of the appellants under Section 150 ends in a result which is different from the assessment list, the assessment list would continue to be operative and the respondent can recover taxes on the basis of the assessment and valuation lists despite the filing of objections under Section 150. 31. It further held that unless the application of the appellants under Section 150 ends in a result which is different from the assessment list, the assessment list would continue to be operative and the respondent can recover taxes on the basis of the assessment and valuation lists despite the filing of objections under Section 150. 31. In my considered view, the said judgment of the Supreme Court turned on the language of the specific provisions of the Act, which fell for its consideration, and the same cannot be applied to the cases on hand. This contention is accordingly answered in favour of the petitioners and I hold application of Regulation 2 of 2006 is exempted to the cases of the petitioners till the disposal of the Civil Appeals by the Supreme Court. Re-Contention No.4: 32. Sri K.Gopal Choudary, learned counsel for the petitioners, contended that except the part of banking, it is not possible to give effect to Regulation 2 of 2006 and that as a fact it is not being given effect to. He submitted that the respondents cannot give effect to a part of the Regulation only leaving other part unimplemented. The learned Standing Counsel, however, filed letter dated 15-3-2007 addressed by the Secretary of the Commission to all the Chairmen of the respondents, wherein he conveyed grant of extension of time by the Commission for completion of installation of 0.2 class accuracy ABT complaint interface meters and special energy meters for open access consumers for one year upto 31-12-2007. He also filed a copy of letter dated 31-1-2008 addressed by the Chief General Manager (Commercial & RAC) to the Secretary of the Commission, wherein he enumerated the various steps taken towards installation of the said meters and requested for extension of time by another six months upto 30-6-2008. Having regard to the findings rendered by me on Contentions 1 to 3, I need not delve into this aspect. Assuming that Regulation 2 of 2006 is being implemented in toto, for the reasons already given supra, the same cannot be enforced against the petitioners. Re-Contention No.5: 33. Having regard to the findings rendered by me on Contentions 1 to 3, I need not delve into this aspect. Assuming that Regulation 2 of 2006 is being implemented in toto, for the reasons already given supra, the same cannot be enforced against the petitioners. Re-Contention No.5: 33. The learned counsel for the petitioners contended that even if Clause 12.1 of Regulation 2 of 2006 along with Appendix-3 is made applicable to the petitioners' cases, they are entitled to draw the unutilized energy banked by them during the six months period from July to December of the year preceding the year in which the energy was banked. 34. From the definition of "Banking", which was reproduced supra, it is quite clear that its very purpose is to keep the excess energy generated by the generating companies in reserve, to be utilized at a later point of time, subject, however, to the conditions contained in the agreement. Under the amended clauses contained in the Agreements, the generating companies, which banked the energy, are entitled to utilize the same from August to March of succeeding year in respect of third party sales and from August to July, which is called Energy Year, of the succeeding year. Thus, a clear intention is manifested from these clauses that the generating companies are entitled to keep the energy generated by them in reserve for being utilized in future period, which shall not be beyond the periods stipulated in the above mentioned clause. 35. First proviso to Clause 12.1 envisaged that in the case of existing users of wheeling, the energy already banked as per the subsisting agreements as on the date of coming into force of the Regulation shall be allowed to be wheeled as hitherto till the expiry of the balance period available for utilization of the banked energy. The words "shall be allowed to be wheeled as was done hitherto till the expiry of the balance period available for utilization of the banked energy" unmistakably show that the arrangement under the existing agreements was saved at least for the balance period. Clause 2(c) of Appendix-3 provided that drawals shall be permitted only for six months period from July to December and the banked energy remained unutilized as on 31st December shall be treated as lapsed. Clause 2(c) of Appendix-3 provided that drawals shall be permitted only for six months period from July to December and the banked energy remained unutilized as on 31st December shall be treated as lapsed. Having regard to the purpose and the object for which the facility of banking is provided, it would be anomalous to interpret this clause as restricting the right of the generating companies to utilize the banked energy between July and December of the current year in which the energy is generated and banked. Such an interpretation frustrates the very purpose of banking and makes the Banking Clauses in the Agreements nugatory. 36. In my considered view, it is reasonable to construe the words "during the six months period from July to December" as the six months period of the year succeeding to the year in which the energy was generated and banked. So interpreted, the energy which was banked upto 31st December, 2006 was available for utilization by the generating companies between July and December, 2007. Any other interpretation would render the said Clause confiscatory, unconscionable and unreasonable. While construing this Clause it is necessary to keep in mind that the entire energy banked by the generating companies was exclusively generated by them at their expense and the same is the exclusive property of the generating companies. Neither the Commission nor the respondents have any power and jurisdiction to act in the manner which takes away such a right from the generating companies by construing the statutory provisions and the Agreement Clauses in an unfair and unreasonable manner. Such an action not only violates Article 14, but also Article 300-A of the Constitution of India. 37. This contention is answered accordingly. 38. As regards the contention of the learned Standing Counsel that in view of Section 86(1)(f) of the 2003 Act, the Writ Petitions are not maintainable, Sri O.Manohar Reddy relied upon the judgment of the Supreme Court in Gujarat Urja Vikash Nigam (1 supra). 39. The jurisdiction under Article 226 is not circumscribed by any restrictions. However, the constitutional courts have placed on themselves certain self imposed restrictions in entertaining Writ Petitions when the petitioner has an effective alternative remedy. But, at the same time, it is held that availability of an alternative remedy is not an absolute bar to entertain a petition under Article 226 of the Constitution of India. However, the constitutional courts have placed on themselves certain self imposed restrictions in entertaining Writ Petitions when the petitioner has an effective alternative remedy. But, at the same time, it is held that availability of an alternative remedy is not an absolute bar to entertain a petition under Article 226 of the Constitution of India. In A. V. Venkateshwaran v. R.S. Wadhwanf, the Constitution Bench of the Supreme Court held thus: "The wide proposition that the existence of an alternative remedy is a bar to the entertainment of a petition under Art.226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non est and that in all other cases, Courts should not entertain petitions under Art. 226, or in any event not grant any relief to such petitioners cannot be accepted. The two exceptions to the normal rule as to the effect of the existence of an adequate alternative remedy are by no means exhaustive, and even beyond them a discretion vests in the High Court to entertain the petition and grant the petitioner relief notwithstanding the existence of an alternative remedy. The broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the court, and in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the court." 40. In Harbanslal Sahnia v. Indian Oil Corporation Ltd.8, the Supreme Court considered the situations in which the High Court can exercise power under Article 226 of the Constitution of India notwithstanding the availability of alternative remedy and held: "The rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of. any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. v. Registrar of Trade Marks { (1998) 8 SCC 1 }. The present case attracts applicability of the first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter, came to be terminated for an irrelevant and nonexistent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings." 41. In ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. 9 , the Supreme Court recognized the existence of plenary right of the High Court even in cases of availability of other remedies in appropriate cases where the High Court is satisfied that the action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or other legitimate reasons for which the Court thinks it is necessary to exercise the said jurisdiction. 42. In National Highways Authority of India v. KMC Constructions Ltd., and another10, the Division Bench of this Court, speaking through me, held that in view of the law laid down by the Supreme Court in various judgments, including ABL International Ltd. (9 supra), the Writ Petition filed for the limited purpose of restraining the National Highways Authority of India from invoking the bank guarantee under a commercial contract was maintainable as the said action was arbitrary. 43. Having carefully considered the facts in their entirety, I am of the opinion that the instant cases fall within the exceptions carved out by the Supreme Court for entertaining the Writ Petitions despite availability of an alternative remedy because the respondents by their patently illegal action are seeking to deny the petitioners their valuable right of using the power banked by them in total derogation of their rights flowing from the contracts saved by the 2003 Act causing manifest injustice to the petitioners. Therefore, I am not inclined to throwaway the Writ Petitions on the ground of availability of alternative remedy under Section 86(1)(f) of the 2003 Act. 44. As regards the judgment in Gujarat Urja Vikash Nigam (1 supra), cited by the learned Standing Counsel, the question which arose for consideration in the said case was whether the Essar Power, a generating company, was entitled to invoke the provisions of Section 11 of the Arbitration and Conciliation Act, 1996 and seek reference of the disputes with the Gujarat Electricity Board for an arbitration instead of approaching the Electricity Regulatory Commission under Section 86(1 )(f) of the 2003 Act. While deciding the said question, the Supreme Court held that the Electricity Act, 2003 being special law overrides the Arbitration and Conciliation Act, 1996, which is general law. In my considered view, the said 'judgment has no application to the present cases because the Supreme Court has not considered whether Writ Petition under Article 226 of the Constitution of India was not maintainable in an appropriate case where the party had a remedy under Section 86(1)(f) of the 2003 Act. 45. For all the above mentioned reasons, all the Writ Petitions are allowed. A Mendamus shall issue to the respondents to permit the petitioners to use the banked energy in terms of the respective Clauses contained in their Agreements ignoring Clause 12.1 read with Appendix-3 of Regulation 2 of 2006 of the Andhra Pradesh Electricity Regulatory Commission to the extent of the energy which was banked prior to 31-12-2006 and not allowed to be utilized after rendering true and proper accounts to the petitioners and, consequently, revise the bills already issued after 315t December, 2006.