Captive consumers' statutory open access right excludes additional surcharge under the Electricity Act's surcharge provision.

Section 9 of the Electricity Act, 2003 gives captive consumers a statutory right to establish captive generating plants and use open access for their own consumption, subject only to transmission availability, without needing State Commission permission. Section 42(4) applies where the State Commission permits supply from a person other than the area distribution licensee, so it does not cover captive consumers exercising an independent statutory right. The Act treats ordinary consumers and captive consumers as distinct classes, and the additional surcharge is therefore not leviable on captive users under Section 42(4).

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Issues: Whether captive consumers or captive users are liable to pay additional surcharge under Section 42(4) of the Electricity Act, 2003.

Analysis: Section 9 of the Electricity Act, 2003 confers a statutory right to construct, maintain and operate a captive generating plant and to avail open access for carrying electricity to the destination of own use, subject only to availability of transmission facility. Such right does not depend on permission of the State Commission. Section 42(4) applies where the State Commission permits a consumer or class of consumers to receive supply from a person other than the distribution licensee of the area of supply. Captive consumers do not fall within that situation because their right flows directly from the statute. The scheme of the Act also treats ordinary consumers under Section 2(15) and captive consumers as different classes, and imposing the additional surcharge on captive consumers would disregard that distinction.

Conclusion: Captive consumers or captive users are not liable to pay additional surcharge under Section 42(4) of the Electricity Act, 2003, and the appeals by the distribution licensee fail.

Final Conclusion: The statutory framework preserves captive generation as a distinct regime and excludes captive consumers from the levy of additional surcharge meant for consumers who shift supply under permitted open access.

Ratio Decidendi: Additional surcharge under Section 42(4) is leviable only when a consumer receives supply from a source other than the area distribution licensee with the State Commission's permission; captive consumers exercising the independent statutory right under Section 9 are outside that levy.

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