Judgment : 1. All these cases are being disposed of by this common order in view of the common point of law involved in these cases. Though W.P.No.16354 of 2009 was not listed for hearing, but at the request of the learned counsel for petitioner, it is clubbed with W.P.No.15410 of 2009 and is being disposed of by this common order along with other cases. In these cases, the petitioners challenge the levy of energy charges on excess energy for the months where their maximum demand exceeded the contracted demand. 2. Heard the learned counsel for petitioners and the learned Standing Counsel for respondents. 3. All the petitioners are HT consumers. They had separate agreements with the licensees. The Andhra Pradesh Electricity Regulatory Commission (for short, Commission) approved the Schedule of Retail Tariff Rates and Terms and Conditions in respect of the four distribution companies for the year 2009-10 (for short, Retail Tariff Rates). Condition (6) of General Conditions of H.T. Supply of the said Tariff Order reads as follows. “(6) Additional charges for maximum demand in excess of the contracted demand: If in any month the recorded maximum demand (RMD) of the consumer exceeds his contracted demand with Licensee, the consumer will pay the following charges on excess demand and energy. Excess RMD over CMD Demand Charges on Excess Demand Energy Charge on Excess Energy 100 to 120% 2 times of normal charge Normal Above 120% and up to 200% 2 times of normal charge 1.5 times of normal charge More than 200% 2 times of normal charge 2 times of normal charge Excess demand and energy shall be computed as follows: Excess Demand = (RMD-CMD) IF RMD is more than CMD with Licensee. Excess Energy = (Excess Demand/RMD) X Recorded Energy.” 4. The petitioners exceeded their contracted demand in respect of various months as indicated in the bills and based on the recorded maximum demand, the respondents issued bills, which are as follows. Sl.No. Name of the petitioner Writ Petition Number Bill issued for the month Bill amount 1. Sri Dhanalakshmi Cotton & Rice Mills Pvt. Ltd. 15410/2009 April and May, 2009 Rs.10,47,872/- 2. Osmania University 14097/2009 April to June, 2009 Rs.29,90,315.65 3. M/s. Agarwal Foundaries 14961/2009 April to June, 2009 Rs.18,92,774/- 4. M/s. Agarwal Foundaries 16354/2009 April to June, 2009 Rs.18,92,774/- 5. M/s. Shrinath Rotopack Pvt. Ltd. 19001/2009 August, 2009 Rs.1,19,454.74 6. Sri Dhanalakshmi Cotton & Rice Mills Pvt. Ltd. 15410/2009 April and May, 2009 Rs.10,47,872/- 2. Osmania University 14097/2009 April to June, 2009 Rs.29,90,315.65 3. M/s. Agarwal Foundaries 14961/2009 April to June, 2009 Rs.18,92,774/- 4. M/s. Agarwal Foundaries 16354/2009 April to June, 2009 Rs.18,92,774/- 5. M/s. Shrinath Rotopack Pvt. Ltd. 19001/2009 August, 2009 Rs.1,19,454.74 6. M/s. Hind Oil Industries 19018/2009 August, 2009 Rs.93,009.60 7. M/s. Blend Colours Pvt. Limited 14195/2009 April to June, 2009 Rs.1,63,536/- 8. M/s/ Hind Oil Industries 14198/2009 April to June, 2009 Rs.2,33,344/- 9. M/s/ Hind Oil Industries 16054/2009 July, 2009 Rs.87,068.28 5. In view of the Tariff Order, the respondents wanted to collect energy charges on excess energy. During the course of hearing, though it was brought to the notice of this Court that a similar issue was earlier decided by a learned single Judge of this Court in W.P.No.15149 of 1988 relating to the period prior to 2000, the learned Standing Counsel for respondents submitted that the said decision is not applicable after the formation of Electricity Regulatory Commission and the cases have to be decided afresh. 6. The learned counsel for petitioners submitted as follows. (i) While fixing the Retail Tariff Rates as Annexure-D to Tariff Order, the Commission has not followed the procedure prescribed under the provisions of the Electricity Act, 2003 and the Business Regulations framed thereunder. (ii) There is no rationale in clubbing contracted maximum demand and energy which are independent and though this point was earlier decided by this Court in W.P.No.15149 of 1988, it was brought into force again in violation of the orders of this Court in the said Writ Petition. (iii) The respondents threatened to disconnect the power supply to the petitioners without issuing any notice and without following the provisions of the Electricity Reforms Act and the said action is illegal. 7. The learned Standing Counsel for respondents, on the other hand, submits that by including the rates as an annexure to the Tariff Order, the Commission has considered various aspects of the matter and no opportunity need be given to the consumers while deciding the rates. It was also contended on behalf of the respondents that the energy charges on excess energy is being collected as a deterrent to the consumers, who consume electricity beyond the contracted demand causing unnecessary load on the infrastructure. It was also contended on behalf of the respondents that the energy charges on excess energy is being collected as a deterrent to the consumers, who consume electricity beyond the contracted demand causing unnecessary load on the infrastructure. The charges are not being collected as a source of revenue and hence the usual procedure for fixing the tariff need not be followed by the Commission. The Commission has taken a view after elaborate consideration of the material available on record in the light of suggestions, objections, comments to ensure the object of equitable contribution and issued a direction to the DISCOMS fixing the ceiling limits and the consumers who exceeded those limits were held to pay additional charges. This is nothing but regulating the supply systems towards consumption and usage thereof. The charges are only additional charges but not penal charges. The requisite procedure envisaged under the Acts as well as Business Regulations has been scrupulously followed by the Commission and the order has been issued after hearing all the stakeholders. In view of the decision in Orissa State Electricity Board V. IPI Steel Ltd. ( 1995 (4) SCC 320 ), the concept of energy charges for the actual consumption plus maximum demand charges for the maximum demand availed by the consumer at the rate prescribed in the agreement is not illegal. The tariff determination by the Commission was extensively dealt with by a Division Bench of this Court in Bharat Kumar V. State of A.P. ( 2000 (6) ALD 217 (D.B.)) which was confirmed in Assn. of Industrial Electricity Users V. State of A.P. ( (2002) 3 SCC 711 ). 8. The learned Standing Counsel for Commission circulated a written note after reserving the cases for judgment raising various contentions, a reading of which does not reflect a good taste on the jurisdiction of this Court and it reads as if this Court should decline to examine the issue. The written arguments state that the Writ Petitions against the orders of the Commission are not maintainable in view of the decisions in PTC India Ltd. V. CEC (2010 (6) SCC 567) and Andhra Pradesh Spinning Mills Association V. Andhra Pradesh Electricity Regulatory Commission (2014 (4) ALT 342 (D.B.)). The written arguments state that the Writ Petitions against the orders of the Commission are not maintainable in view of the decisions in PTC India Ltd. V. CEC (2010 (6) SCC 567) and Andhra Pradesh Spinning Mills Association V. Andhra Pradesh Electricity Regulatory Commission (2014 (4) ALT 342 (D.B.)). The power exercised by the Commission while fixing the tariff under Section 62 of the Electricity Act, 2003 (for short, the Act) is a legislative power exercised in a quasi-judicial manner and hence any order passed by it is an appealable order. The imposition of any condition with regard to demand or energy is part of such tariff determination only and cannot be interfered under Article 226 of the Constitution of India as the same being highly technical matter based on several factors concerning technical and financial matters. Reliance was placed in case of Assn. of Industrial Electricity Users (3 supra). It is further submitted that the price fixation is a matter of policy and the judicial review under Article 226 of the Constitution of India is not available as held in Bihar State Electricity Board V. Usha Martin Industries ( (1997) 5 SCC 289 ). It was further submitted that the consumer is supposed to abide by the terms and conditions issued by the Company and also the tariff determined by the Commission in accordance with law from time to time. Hence, the consumer cannot turn around and challenge the same stating that he has no notice of the Terms and Conditions of Supply. The Commission merely directed the DISCOMS to enforce the directions with regard to additional charges as introduced in the Tariff Order. Unless these additional charges are imposed, the consumer will exceed the demand and consequently they consume more than the quantum of energy available in respect of their demand. It is also submitted that the decision in Sri Vishnu Cements Ltd. Seethapuram V. A.P.S.E.B., Hyd. ( 2009 (3) ALD 29 ) is not applicable to the facts of the present case. The learned Judge in that case restricted and confined the relief to the petitioner therein and it does not preclude the authority which came into existence subsequently by virtue of statutory provisions to levy such charges as per law. The fact situation existing as on today is completely different in view of the creation of the authority to make tariff under the new legislation. The fact situation existing as on today is completely different in view of the creation of the authority to make tariff under the new legislation. Thus the decision rendered without taking into consideration the relevant document or non-analysis of the relevant provision of the statute is not a precedent. They relied on State of Orissa V. Sudhansu Sekhar Misra ( AIR 1968 SC 647 ) and Ambika Quarry Works V. State of Gujarat ( (1987) 1 SCC 213 ). 9. In view of the above rival contentions raised by the learned counsel for both sides, it is necessary to decide the following issues. (i) Whether this Court has jurisdiction to decide the present issue without driving the petitioners to avail the alternative remedy of appeal as provided under Section 111 of the Act? (ii) Whether this Court is competent to examine the legality or otherwise of the Tariff Order issued by the Commission when the Commission is a creature of a statute? (iii) Whether this Court can set at aside the decision of the Commission when it did not follow the required procedure as contemplated under the Business Regulations? (iv) Whether the decision in Sri Vishnu Cements Ltd. Seethapuram’s case (7 supra) is directly on the issue and in the face of such decision, can the Commission provide for collection of same type of charges in the guise of its having authority due to its creation under a new legislation; (v) Whether the collection of additional energy charges have anything to do with the act of the consumer exceeding the contracted demand and its regulation thereof? Decision in Sri Vishnu Cements Ltd. Seethapuram’s case (7 supra) and its effect: 10. This Court in the above case held that levy of penalty on energy proportionate to excess demand recorded over and above the contracted demand was not legal, when agreement between petitioner and respondents only limits maximum demand and no restriction was placed on consumption of energy. The petitioner cement factory in that case was a bulk consumer of electricity. Its Contracted Maximum Demand (CMD) was 15000 KVA. While so, a bill was served for the month of September indicating that the Recorded Maximum Demand (RMD) was 16320 KVA. In view of the same, the then APSEB, in addition to levying penalty for exceeding the CMD, charged a sum of Rs.9,92,466.91 ps., in terms of Clause (7) of B.P.Ms.No.671 dated 10.06.1987. While so, a bill was served for the month of September indicating that the Recorded Maximum Demand (RMD) was 16320 KVA. In view of the same, the then APSEB, in addition to levying penalty for exceeding the CMD, charged a sum of Rs.9,92,466.91 ps., in terms of Clause (7) of B.P.Ms.No.671 dated 10.06.1987. 11. The petitioner therein challenged the levy of double the charges on the energy and it did not challenge the levy of double the charges on demand in excess of CMD. It was contended that the demand and energy are separate and independent components, in the context of levying penalties and there is no basis for treating them as inter-dependent, more so when there is no separate contract in respect of energy. 12. The APSEB contended that they are conferred with the statutory power to stipulate or alter the conditions of supply and the amounts were charged in terms of Clause (7) of B.P.Ms.No.671 dated 10.06.1987 which reads as follows. “7. Additional charges for Maximum Demand in excess of the Contracted Demand: If in any month the recorded maximum demand of the consumer exceeds his contracted demand by more than 5%, that portion of the demand in excess of the contracted demand and that portion of the proportionate energy will be billed as follows: Demand, Energy and Fuel cost adjustment charges will be billed at twice the normal charges.” 13. Later on, the APSEB deleted the word “energy” from the said clause through B.P.Ms.No.225 dated 16.10.1990. This Court came to the conclusion that in the name of penalising the petitioner for crossing the limits of maximum demand, the respondents cannot derive the double benefit by levying the penal tariff on the energy also and accordingly held that Clause (7) of B.P.Ms.No.671 dated 10.06.1987 was unreasonable, illegal and irrational insofar as permitting the levy of penal tariff on the energy. 14. The ratio of the said decision is that the maximum demand and energy are two separate components and they have no relationship with each other. Though the A.P.S.E.B was empowered under Clause (7) of B.P.Ms.No.671 dated 10.06.1987, such type of clause was held to be unreasonable and illegal. That is a binding decision of this Court which has to be followed by all Authorities, Tribunals and Courts within the State of Andhra Pradesh. 15. Though the A.P.S.E.B was empowered under Clause (7) of B.P.Ms.No.671 dated 10.06.1987, such type of clause was held to be unreasonable and illegal. That is a binding decision of this Court which has to be followed by all Authorities, Tribunals and Courts within the State of Andhra Pradesh. 15. It is urged on behalf of the Commission that the said decision is not applicable to the facts of the present case as it was confined to the facts of that case only. The said decision does not prohibit the Commission from authorising the DISCOMS to levy additional charges on energy. The fact situation existing as on today is completely different and it is urged indirectly that the said decision was rendered without taking into consideration the relevant document and without analysing the relevant provisions of the statute and hence it is not a precedent. In putting forward these submissions, the Commission is under a total misconception of law. The ratio of a decision will be a binding precedent and if the said ratio can be applied to different set of facts, still the decision does not lose its precedential value. The facts may vary from case to case, but what is binding is the ratio decidendi. As already held above, the ratio of the decision was clear and it is binding on the authorities. 16. Though the Commission is an authority created under a statute, it cannot violate the said law laid down by this Court on the ground that it is a statutory authority. This is a clear case of misunderstanding of law laid down by this Court. The Tariff Order, though passed under the provisions of the Act, cannot ignore the law operating in the State. A decision of a Constitutional court can be nullified only by removing the basis through legislation but not directly ignoring it by authorising the DISCOMS through a Tariff Order. The present action of the Commission is thus illegal as the ratio of the said decision holds the field even today. Procedural irregularities in decision making process by the Commission: 17. The Commission framed regulations called “Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) Amendment Regulations, 2000” making amendments to the Regulations made in 1999. By amending the 1999 Regulations, Chapter IVA was inserted. Procedural irregularities in decision making process by the Commission: 17. The Commission framed regulations called “Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) Amendment Regulations, 2000” making amendments to the Regulations made in 1999. By amending the 1999 Regulations, Chapter IVA was inserted. Under Regulation 45-A of the said Regulations, each year, at the time required by the licensee or otherwise as may be directed by the Commission, each licensee shall file with the Commission, statements containing calculation for the ensuing financial year the expected aggregate revenue from charges under its currently approved tariff and the expected cost of providing services. Sub-rule (6) of Regulation 45-A provides that the Commission shall hold a proceeding on the revenue calculations and tariff proposals given by the licensee and may hear such persons as the Commission may consider appropriate for making a decision on such revenue calculations and tariff proposals. Sub-rule (8) provides that upon hearing the parties, the Commission shall make an order and notify its decision on the revenue calculations and tariff proposals. Sub-rule (9) provides that while making such an order, the Commission may direct the publication of the tariff that the licensee shall charge the different consumers or customers and categories thereof in the ensuing financial year. Sub-rule (10) provides that publication should be in the newspapers having circulation in the area of supply and it may include a general description of the tariff amendment and its effect on the classes of the consumers. Sub-rule (11) provides that the tariffs so published shall become the notified tariffs applicable in the area of supply and shall take effect only after such number of days as the Commission may direct which shall not be less than seven days from the date of first publication of the tariffs. Sub-rule (12) provides that the licensee shall raise bills for the energy supplied of transmitted or services rendered to the consumers in accordance with the notified tariff. 18. In accordance with the said Regulations, the proposed tariff was published in the newspapers on 24.12.2008. In the said publication, it was specifically stated that the charges and terms and conditions currently applicable in respect of the existing retail tariffs are proposed to be made applicable for the ensuing year (2009-10) as well, except specified otherwise. 18. In accordance with the said Regulations, the proposed tariff was published in the newspapers on 24.12.2008. In the said publication, it was specifically stated that the charges and terms and conditions currently applicable in respect of the existing retail tariffs are proposed to be made applicable for the ensuing year (2009-10) as well, except specified otherwise. However, the Central Power Distribution Company issued a memo on 12.06.2009 stating that the Tariff Order for the year 2009-10 was issued on 01.06.2009 though it was approved on 25.03.2009 and stating that it provides for calculation of additional charges for maximum demand in excess of the contracted demand and it includes the levy of energy charges on excess energy. 19. The learned counsel for petitioners submit that when the publication indicated that existing tariff would continue for the year 2009-10, the Commission ought not to have included the additional charges for maximum demand in excess of the contracted demand by providing for calculation of energy charges on excess energy in Annexure-D. They also submit that the Commission should have provided an opportunity as it affected large number of HT consumers and the procedure adopted by the Commission is in violation of its own business rules. 20. The learned Standing Counsel for respondents on the other hand submits that all matters of tariff will not be published in the notification and the representatives of all the parties were present during the tariff hearings. The Tariff Order was passed only after hearing all the parties and there is nothing wrong in including the energy charges on excess energy in Annexure-D. When this Court pointed out to the learned Standing Counsel whether there is any discussion with regard to this collection of charges in the main Tariff Order, he was unable to show any discussion before the Commission while passing the Tariff Order. 21. The learned counsel for petitioners submit that the said business regulations were not complied with while allowing the licensees to charge additional charges for maximum demand in excess of contracted demand. They further submit that in the absence of any communication or knowledge of proposal as to the levy of charges, the consumers could not put forward their plea before the Commission and in fact the Commission did not discuss the matter at all. Ultimately when the Tariff Order was issued, it was communicated as an annexure to the same. They further submit that in the absence of any communication or knowledge of proposal as to the levy of charges, the consumers could not put forward their plea before the Commission and in fact the Commission did not discuss the matter at all. Ultimately when the Tariff Order was issued, it was communicated as an annexure to the same. Further, a perusal of the table enabling the collection of additional charges indicates that in the case of 100% to 120% of excess RMD over CMD, only the demand charges on excess demand can be collected at two times of normal charge. In definition, it is stated that excess demand = (RMDCMD) if RMD is more than CMD with Licensee. Hence, if the RMD is more than CMD to the extent of 100% to 120%, only the additional charges can be levied. But, in case of RMD exceeding CMD even by 20%, the said additional charges are demanded and the same is contrary to what was indicated therein. It is obviously a case of poor drafting. The intention of the Commission was to enable the licensees to collect some penalty in case of exceeding CMD by 20% at some rate and beyond 20% at some other rate. But, while drafting, it is indicated that if the RMD exceeds CMD by more than 100% then only the additional charges would be collected. Be that as it may, with regard to the procedure, the plea of the Commission is that everything will not be notified in the publication and whatever it decides should be taken to have been done after due deliberations. The learned Standing Counsel for Commission also submitted that the petitioners did not protest at the time of hearing and now they are estopped from challenging the same. This argument is totally untenable. The petitioners had no inkling of the proposed demands and hence they could not protest at the time of tariff hearings. There was no publication of the proposal and no hearing took place before the Commission with regard to this type of levy. Thus it is obvious that the procedure contemplated in the business regulations framed by the Commission itself were not followed, while allowing the licensees to collect the additional charges. 22. There was no publication of the proposal and no hearing took place before the Commission with regard to this type of levy. Thus it is obvious that the procedure contemplated in the business regulations framed by the Commission itself were not followed, while allowing the licensees to collect the additional charges. 22. The defence taken by the Commission was that it was exercising powers under Sections 61 and 62 read with Section 64 of Part-VII of the Act and the requisite procedure envisaged under the Act as well as business regulations was scrupulously followed by the Commission and after hearing all the stakeholders the order was issued. It further stated that the determination of tariff is a function being discharged by the Commission which is legislative in character. It takes into consideration various aspects while determining the tariff and in view of the decision in Orissa State Electricity Board’s case (1 supra), the concept of energy charges and maximum demand charges are clear. Therefore, there is no illegal determination by the Commission in fixing the ceiling limits on these two components and directing the licensees to levy additional charges on the consumers who drew excess limits shown in the annexure to the Tariff Order. 23. When the Commission itself says that energy charges and demand charges are two separate components, there is no explanation for mixing both the components in the case of exceeding the contracted demand. The Commission is obviously ignoring the said fact while contending that there is a ceiling limit on energy charges. The procedural irregularity specifically pointed out by the learned counsel for the petitioner has not been answered. 24. Judicial review is one of the basic features of the Constitution which cannot be taken away even by Constitutional amendment. All the Authorities, Tribunals and Courts under the jurisdiction of High Court are amenable to the writ jurisdiction exercised by this Court under Article 226 of the Constitution of India. Though the Commission is a creature of a statute, it cannot claim any immunity for its actions. When the decision making process is vitiated, this Court can certainly interfere with the decision and quash the same. Though the Commission is a creature of a statute, it cannot claim any immunity for its actions. When the decision making process is vitiated, this Court can certainly interfere with the decision and quash the same. Merely because the additional charges were shown in Annexure-D to the Tariff Order, no immunity can be given for such additional charges and for that matter, the Tariff Order can also be subject to scrutiny by this Court in appropriate cases. The argument advanced by the Commission is farfetched. This Court is concerned with the decision making process, but not the decision, as held by the Hon’ble Supreme Court in Tata Cellular V. Union of India (1994 SCC (6) 651). When the decision making process is vitiated, the decision cannot be held to be legal. In view of this, the decision of the Commission cannot be upheld. On this point alone, these Writ Petitions are to be allowed. Exhaustion of alternative remedy of appeal: 25. This plea of exhaustion of alternative remedy of appeal need not be considered afresh as it was elaborately considered by this Court in India Cements Ltd. V. Chairman, APSERC ( 2011 (5) ALT 188 ) and the principles were culled out in para 74 as follows. “ 74. From the above, it is clear that writ petition under Article 226 of the Constitution of India against an order passed by a statutory authority can be entertained despite availability of alternative remedy against it in the following cases: (i) if the alternative remedy is not efficacious, (ii) if the writ petition has been filed for the enforcement of any of the fundamental rights or (iii) where there has been a violation of the principles of natural justice or (iv) where the order or proceedings are wholly without jurisdiction or (v) the vires of an Act or Regulations framed thereunder are challenged.” 26. In the instant case, as already held above, there is a procedural irregularity in the decision making process apart from violating the ratio held by this Court in Sri Vishnu Cements Ltd. Seethapuram’s case (7 supra). Hence, the plea of the Commission relying on the decision in Andhra Pradesh Spinning Mills Association’s case (5 supra) is of no avail, as the facts in that case are different. Hence, the plea of the Commission relying on the decision in Andhra Pradesh Spinning Mills Association’s case (5 supra) is of no avail, as the facts in that case are different. The ratio held by the learned single Judge of this Court in India Cements Ltd’s case (11 supra) is the ratio that is consistently followed by the Hon’ble Supreme Court till today and in view of the same, the present Writ Petitions are maintainable and the respondents cannot demand the petitioners to exhaust the remedy of appeal. 27. For the reasons stated above, the Writ Petitions are liabled to be allowed and accordingly they are allowed. If the respondents had collected any energy charges on excess energy, they can either refund or adjust in future bills of the petitioners. No costs. Miscellaneous Petitions pending, if any, in these Writ Petitions shall stand closed.