1. Orissa Electricity Regulatory Commission Through its Secretary Bidyut Niyamak Bhawan, UnitVIII, Bhubaneswar751 012, Odisha. 2. OCL Iron & Steel Ltd., VIll:Lamloi, Po: Garvana, Rajgangpur, Odisha770017 Through its Chief Executive Officer. 3. M/s OCL India Ltd., At/PO : Rajgangpur, Distt : Sundergarh, Odisha 770017 Through its Chief Executive Officer. 4. Grid Corporation Ltd. (Gridco) Janpath, Bhubaneswar, Odisha Through its Managing Direcor, Pincode 751022. Page 1 of 44 Appeal no. 137 of 2012 ...Respondent(s) Counsel for the Appellant(s) : Mr. Suresh Tripathi, Advocate Counsel for the Respondent(s) : Mr. R. M. Patnaik,Mr.P.P. Mohanty, Mr.D. Mishra for R3, Mr. Ranvir Singh & Ms. Shruti for R2, Mr. Rutwik Panda and Mr.B.K. Nayak for R1 JUDGMENT HON'BLE MR. JUSTICE P.S. DATTA, JUDICIAL MEMBER 1. The Western Electric Supply Company Ltd. (WESCO), a distribution licensee having been aggrieved with the order of the Odisha Electricity Regulatory Commission dated 31.1.2012, the respondent no.1 herein, passed in connection with a proceeding , being no. 85 of 2011 filed by the appellant before the Commission under the OERC (Conditions of Supply ) Code, 2004, on the ground of the said order allegedly being violative and contemptuous ,apart from being illegal, of this Tribunal's Judgment dated 5.8.2011 passed in Appeal no.171 of 2010 and Appeal no.187 of 2010 has come up in this Appeal as an appellant with prayer for setting aside the said order in order that this Tribunal's order dated 5.8.2011 passed in the aforesaid two appeals is implemented. Page 2 of 44 Appeal no. 137 of 2012 2. M/s OCL and Iron & Steel Ltd., the respondent no 2, has a captive generation plant of 14 MW installed capacity and the surplus power of 4 MW was being supplied to the respondent no.3, namely M/s OCL India Ltd. (a cement company) through an independent 11 kV feeder. The said cement company is also a consumer of the appellant having a contract demand of 43.5 kVA and is availing supply at 132 kV. The said cement company, called OCL approached the Commission being Case no.10 of 2008 with a prayer that since it was a captive consumer, it was not liable to pay cross subsidy surcharge while availing open access. The Commission by the order dated 1.12.2008 rejected the prayer. An appeal was preferred by the said OCL being Appeal no.20 of 2008 before this Tribunal and the appeal was also dismissed by order dated 3.9.2009. 3. With this first round of litigation in background started the next phase of litigation. In its desire to see that the surplus power is mopped up, the Commission directed by an order dated 30.6.2009 the CGPs in the State to come into agreement with respondent no.4 GRIDCO. Accordingly, the GRIDCO entered into agreement on 14.10.2009 with the M/s OCLI&S agreeing to sell power at 11 kV to GRIDCO. The Page 3 of 44 Appeal no. 137 of 2012 arrangement was such that GRIDCO shall sell such power to the appellant at the Bulk Supply Tariff and the appellant in turn will sell the said power to the cement company at Retail Supply Tariff at EHT. The appellant was not a party to the agreement. The Commission, however, by annulling the disputed agreement directed by the order dated 26.8.2010 to enter into a fresh Quadripartite Agreement involving GRIDCO,WESCO, Steel Company and Cement Company mentioning all technical and commercial details. The WESCO was although opposed to any agreement. The Commission, of course, held that the appellant was entitled to wheeling charges. The Commission directed that the sale of surplus p