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2020 Supreme(SC) 183
SUPREME COURT OF INDIA
Deepak Gupta, Aniruddha Bose, JJ.
KERALA STATE ELECTRICITY BOARD REP. BY ITS SECRETARY & ANR. – APPELLANTS
VERSUS
PRINCIPAL SIR SYED INSTITUTE FOR TECHNICAL STUDIES & ANR. – RESPONDENTS
CIVIL APPEAL NO. 8350 OF 2009 WITH CIVIL APPEAL NOS. 8552-8573/2009 CIVIL APPEAL NOS. 8574-8592/2009 CIVIL APPEAL NOS. 8593-8605/2009 CIVIL APPEAL NOS. 1027-1046/2010 CIVIL APPEAL NOS. 1048-1067/2010 CIVIL APPEAL NOS. 1068-1080/2010 CIVIL APPEAL NO. 1009 /2010 CIVIL APPEAL NOS. 1025-1026/2010 CIVIL APPEAL NOS. 1021-1023/2010 CIVIL APPEAL NOS. 1003-1007 /2010 CIVIL APPEAL NOS. 1010-1020 /2010 CIVIL APPEAL NOS. 1085/2010 CIVIL APPEAL NOS. 1081-1082/2010 CIVIL APPEAL NOS. 1083/2010 CIVIL APPEAL NO. 1084/2010 CIVIL APPEAL NO. 1087/2010 CIVIL APPEAL NO. 1086/2010 CIVIL APPEAL NO. 1088/2010 CIVIL APPEAL NO. 3101/2010 CIVIL APPEAL NO. 3091/2010 CIVIL APPEAL NO. 3093/2010 CIVIL APPEAL NO. 3095/2010 CIVIL APPEAL NO. 3110 /2010 CIVIL APPEAL NO. 3102 /2010 CIVIL APPEAL NO. 3103/2010 CIVIL APPEAL NO. 3109/2010 CIVIL APPEAL NO. 3112/2010 CIVIL APPEAL NOS. 3104-3107 /2010 CIVIL APPEAL NO. 3100 /2010 CIVIL APPEAL NO. 3111/2010 CIVIL APPEAL NO. 3113/2010 CIVIL APPEAL NO. 3097/2010 CIVIL APPEAL NOS. 3098-3099 /2010 CIVIL APPEAL NO. 3096/2010 CIVIL APPEAL NO. 3092/2010 CIVIL APPEAL NO. 3108/2010 CIVIL APPEAL NOS. 4533-4572/2010 CIVIL APPEAL NO. 3996/2010 CIVIL APPEAL NO. 3993/2010 CIVIL APPEAL NOS. 3998-3999/2010 CIVIL APPEAL NO. 4000/2010 CIVIL APPEAL NO. 3997/2010 CIVIL APPEAL NOS.3990-3992/2010 CIVIL APPEAL NOS. 3994-3995 /2010 CIVIL APPEAL NOS. 4653-4667/2010 CIVIL APPEAL NOS. 4670-4672 /2010 CIVIL APPEAL NO. 4652/2010 CIVIL APPEAL NO. 4674 /2010 CIVIL APPEAL NO. 4673/2010 CIVIL APPEAL NO. 4669 /2010 AND CIVIL APPEAL NO. 4668/2010
Decided On : 20-02-2020
For the Appellant(s) :G. Prakash, Jishnu M.L., Priyanka Prakash, Beena Prakash, P. V. Dinesh, Sindhu P., Mukund P.Unny, Bineesh K., Ashwini Kumar Singh, M. T. George, Advocates
For the Respondent(s):E. M. S. Anam, Pawan Kishore Singh, Bindu Nair, Madhusmita Bora, V. K. Monga, Jogy Scaria, V. K. Sidharthan, M. T. George, A. Raghunath, Prakash Ranjan Nayak, K. Rajeev, Ranjith K. C., Himinder Lal, Raghenth Basant, Liz Mathew, Mahamaya Chatterjee, Raghav Mehrotra, Ashwani Bhardwaj, Parmanand Pandey, Imtiaz Ahmed, Naghima Imtiaz, Ahmed Zargham, M/S. Equity Lex Associates, Romy Chacko, Ramesh Babu M. R., C. K. Sasi, G. Prakash, Pratp Venugopal, Surekha Raman, Ayushi Gaur, Akhil Abraham Roy, Vijay Valsan, M/S. K J John And Co, Swarupama Chaturvedi, Advocates
IMPORTANT POINT
In absence of any statutory provision to the contrary, once tariff proposal is published and goes unobjected to before State Commission, question of disclosure of reason for such fixation would not arise at stage of finalisation of tariff.
Headnote:
Electricity Act, 2003 – Section 62 – Legality of a part of a tariff notification issued by Kerala State Electricity Regulatory Commission – Main case of writ petitioners is that while fixing tariff, Commission cannot show undue preference to any consumer of electricity – Requirement for disclosure of reason could originate in a case of this nature if there is a lis between consumer and Commission unless statutory provisions prescribe otherwise – Once Division Bench observed that publication in website was sufficient, writ petitioners may not have had forfeited their right to challenge tariff notification in Writ Court or appellate forum – But having failed to generate any lis on tariff proposal by not raising any kind of objection, it would not be open to them to demand disclosure of reasons along with publication of tariff rates – Commission’s role as a quasi-judicial body or it having trappings of a Court would emerge only if it was called upon to adjudicate a dispute – Exercise of fixing tariff has to be undertaken as a quasi-legislative act only which ordinarily a tariff-fixing exercise – In absence of any statutory provision to the contrary, once tariff proposal is published and goes unobjected to before State Commission, question of disclosure of reason for such fixation would not arise at stage of finalisation of tariff – If such tariff orders are later challenged before appellate forum or Writ Court, Commission would have to defend its decision same way an administrative or quasi-legislative decision on fixing of tariff is defended – No error was committed by appellants in fixing higher tariff for Self-Financing Educational Institutions categorising them as commercial entities – No undue preference has been given to State run and State aided institutions in tariff notification – Fact that SFEIs have been clubbed together with several commercial service providers wholly unrelated to education becomes insignificant once purpose of SFEIs could be differentiated from Government run and Government aided educational institutions – Judgment under appeal set aside and judgment of First Court restored. (Paras 7, 10, 11, 20 and 21)
Facts of the case:
Legality of a part of a tariff notification issued by Kerala State Electricity Regulatory Commission (Commission) segregating Self-Financing Educational Institutions (SFEI) from Government run and Government Aided Private Educational Institutions and subjecting the former to a higher category of tariff is the only question involved in this batch of appeals. The notification to that effect was issued by the Commission on 26th November, 2007 bearing Order No.TP 23 and TP 30 of 2007. Such tariff was to take effect from 1st December, 2007. SFEIs have been categorised under the head Low Tension VII(A) Commercial in that notification. The Government run or aided private educational institutions have been placed under Low Tension VI Non-Domestic tariff category. The Commission is the appellant before us in this set of appeals.
Findings of the Court:
No undue preference has been given to the State run and State aided institutions in the tariff notification. The fact that SFEIs have been clubbed together with several commercial service providers wholly unrelated to education becomes insignificant once we find that purpose of the SFEIs could be differentiated from the Government run and Government aided educational institutions.
Result : Appeals allowed.
JUDGMENT
ANIRUDDHA BOSE, J.
The legality of a part of a tariff notification issued by the Kerala State Electricity Regulatory Commission (“Commission”) segregating Self-Financing Educational Institutions (SFEI) from Government run and Government Aided Private Educational Institutions and subjecting the former to a higher category of tariff is the only question involved in this batch of appeals. The notification to that effect was issued by the Commission on 26th November, 2007 bearing Order No.TP 23 and TP 30 of 2007. Such tariff was to take effect from 1st December, 2007. SFEIs have been categorised under the head Low Tension VII(A) Commercial in that notification. The Government run or aided private educational institutions have been placed under Low Tension VI Non-Domestic tariff category. The Commission is the appellant before us in this set of appeals. Such tariff notification was published in terms of Kerala State Electricity Regulatory Commission (Terms and Conditions of determination of tariff for distribution and retail sale of electricity under MYT Framework) Regulations, 2006.
2. Several Writ Petitions came to be filed by different SFEIs questioning legality of such segregation which in effect created a higher tariff regime for them. Altogether 52 writ petitions were taken up for hearing by a learned Single Judge of the Kerala High Court (the First Court). The learned Single Judge found the tariff order to be valid, relying on a decision of a Constitution Bench of this Court in the case of T.M.A Pai Foundation and Anr. v. State of Karnataka and Ors. 2002 (8) SCC 481 and a Bench judgment of the High Court of Kerala in the case of Social SG of Assisi sisters v. KSEB 1988 (1) KLT 1727. The First Court decided the issue in favour of the Commission, inter-alia, on the following reasoning:-
“But, I note that there is no pleading whatsoever for the petitioners about the Government Order. There is no case in the Writ Petitions based on the Order. Further, the Higher Secondary Schools are attached to Schools having Standards upto High School Section, where as I have already noted, there is no restriction as contained in relation to Government and Aided Schools. Also, what has been fixed is the minimum salary of teachers and others. It appears to be low. What is important is the capability to raise revenue and its ramifications, and not whether any particular Self-Financing Educational Institutions is actually making use of its power to raise revenue, as ordinarily a Self-Financing Educational Institution may raise.”
3. In appeal by the SFEIs, the Division Bench of the High Court set aside the judgment of the First Court. The Division Bench found that the differentiation was not for any of the grounds specified in Section 62 (3) of the Electricity Act, 2003. That is the provision under which the State Commission can determine the tariff. Section 62 of the 2003 Act specifies:-
“62. Determination of tariff:- (1) The Appropriate Commission shall determine the tariff in accordance with the provisions of this Act for –
(a) supply of electricity by a generating company to a distribution licensee:
Provided that the Appropriate Commission may, in case of shortage of supply of electricity, fix the minimum and maximum ceiling of tariff for sale or purchase of electricity in pursuance of an agreement, entered into between a generating company and a licensee or between licensees, for a period not exceeding one year to ensure reasonable prices of electricity;
(b) transmission of electricity;
(c) wheeling of electricity;
(d) retail sale of electricity:
Provided that in case of distribution of electricity in the same area by two or more distribution licensees, the Appropriate Commission may, for promoting competition among distribution licensees, fix only maximum ceiling of tariff for retail sale of electricity.
(2) The Appropriate Commission may require a licensee or a generating company to furnish separate details, as may be specified in respect
