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2009(4) Supreme 284
SUPREME COURT OF INDIA
S.B. Sinha, Asok Kumar Ganguly and R.M. Lodha, JJ.
Binani Zinc Limited — Appellant
versus
Kerala State Electricity Board and others — Respondents
Civil Appeal No. 3492 of 2006
Decided on : 19-03-2009
(b) Electricity (Supply) Act, 1948 – Section 49 – The Electricity Regulatory Commissions Act, 1998 having not repealed the 1948 Act, it cannot be contended that after enactment of 1998 Act, notwithstanding constitution of a Commission, the Board would have no jurisdiction at all to frame a tariff. (Para 24)
(c) Electricity (Supply) Act, 1948 – Section 49 – The power to make tariff includes the power to revise the same. (Para 26)
(d) Electricity Regulatory Commissions Act, 1998 – Sections 29 and 52 – The non obstante clause contained in Section 29 or Section 52 of the 1998 Act would be attracted only when the Commission comes into force and not prior thereto – Therefore factors enumerated in section 29(2)(c) to (g) are not binding on the Board. (Paras 27 and 28)
(e) Interpretation of statute – A statute does not envisage doing anything which is impossible to be done – Lex non cogit ad impossibilia Gausa ommiss Gausa ommiss – Therefore the principles required to be adopted by the Commission were not per force required to be adopted by the Electricity Boards despite the fact that the Commission did not come into existence. (Para 29)
(f) Judicial Review – Rule of law postulates that all laws would be prospective – Therefore Commission is not empowered to frame tariff with retrospective effect. (Para 30)
(2004) 1 SCC 195 – Referred.
(g) Electricity Regulatory Commissions Act, 1998 – Section 29 – Regulatory Commission will be the sole authority to determine the tariff only after its constitution. (Para 34)
Facts of the case :
1. The whole issue revolves round the jurisdiction of the KSEB to revise tariff prior to constitution of KSERC and thereafter.
Finding of the Court :
The Board had the power to frame and revise tariff before constitution of the Regulatory Commission.
Result : Reference answered.
JUDGMENT
S.B. Sinha, J.—
1. Correctness or otherwise of an observation made by a two Judge Bench of this Court in BSES Ltd. and others v. Tata Power Company Ltd.,1 [(2004) 1 SCC 195] having been doubted, this matter has been referred to a Larger Bench.
2. Kerala State Electricity Board (KSEB), respondent No.2 is constituted and incorporated under the provisions of the Electricity (Supply) Act, 1948 (for short ‘the 1948 Act’). Indisputably the first respondent is entitled to frame and revise tariff for electrical energy in exercise of the powers conferred upon it by Sections 49, 59 and clause (j) of Section 79 of the 1948 Act.
3. The Parliament enacted Electricity Regulatory Commissions Act, 1998 (for short 1998 Act) which received the assent of the President of India on or about 2nd July, 1998. It was, however, deemed to have come into force with effect from 25th April, 1998.
4. By order dated 13th May, 1999, KSEB revised its tariff with effect from 15th May, 1999. A writ petition was filed by an Association questioning the said order.
5. Subsequently on 3rd May, 2001 the Government of Kerela effected an increase of tariff for all categories of consumers except old age homes, schools and hostels of mentally retarded persons etc. The revised tariff was made effective from August 10, 2001. According to the governmental order, KSEB was incurring a deficit of Rs. 160.44 crores per month and in order to make up for the said deficiency the tariff hike was necessitated. Pursuant to the said policy decision the KSEB later on issued a detailed tariff order.
6. The Power Department of the Government of Kerala issued G.O. (MS) No. 23/2001/PD on 17th August, 2001 inter alia declaring that the Government of Kerela had tentatively decided to enter into a MOU with the Government of India with a view to affirm the joint commitment of the two parties to reform the power sector in Kerela in a time bound manner. The said MOU in the relevant para stated :-
“8. Kerala will constitute an independent State Electricity Regulatory Commission by October, 2001 and file tariff petitions by March 2002. Tariff orders issued by SERC will be implemented fully unless stayed or set aside by Court orders.”
7. On or about 11th October, 2001 a Government Order was issued by the Government of Kerala further enhancing the tariff by 50 paise per unit for all industrial consumers.
8. KSEB revised tariff under Sections 49, 59 and sub-section (j) of Section 79 of the 1948 Act by issuing an order known as ‘The Kerala State Electricity Board Extra High Tension Tariff Revision Order 2002" (for the sake of brevity ‘2002 Order’). The said order came into force with effect from 1st October, 2002 in terms whereof revision in the tariff for extra high tension industrial units was effected.
9. The Kerala State Electricity Commission (KSERC) was constituted by the State of Kerala on 14th November, 2002 in exercise of its power conferred by Section 17 of the 1998 Act.
10. Appellant questioning the validity of the said 2002 Order filed a writ petition before the Kerala High Court which was marked as OP 9798 of 2003. As in the meanwhile the KSERC came into force, the High Court permitted the appellant to approach the Commission within 30 days noting that it would be entitled to examine whether the revision conforms to Section 29 of the 1998 Act or not.
11. The Parliament enacted the Electricity Act, 2003 which came into force with effect from 10th June, 2003.
12. The KSERC in terms of its order dated 30th April, 2004 inter alia held :-
a) On the day the notification dated 24.10.2002 was issued, the Board was empowered to determine the tariff since the Electricity (Supply) Act, 1948 was still applicable.
b) No ground for re-determining tariff for HT and EHT consumers.
c) Cross subsidy for tariff for HT and EHT categories was around 43%.”
13. The appeal was preferred thereagainst before the High Court in terms of Section 27 of the 1998 Act whereupon by an order dated 2nd July, 2004
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