IMPORTANT POINT
The court affirmed that tariff fixation under the Electricity Act, 2003, allows for discretion by the Appropriate Commission, distinguishing between multi-licensee and single licensee areas, thus rejecting claims of discrimination.

JUDGMENT :

(Sabyasachi Bhattacharyya, J.) :

1. The petitioner-Company is a consumer of electricity from the respondent no. 2-West Bengal State Electricity Distribution Company Limited (WBSEDCL), located in Post Office – Bishnupur, District – Bankura, West Bengal. The writ petition has been filed seeking a revision in the electricity tariff imposed on the petitioner and other consumers in the area outside the DVC command area.

2. Learned counsel for the petitioner argues that the petitioner has been consuming electricity all along from the WBSEDCL. Initially, the command area where the petitioner was enjoying electricity was a multi-licensee area, both the Durgapur Project Limited (DPL) and the WBSEDCL supplying electricity in the said area. In the adjacent area both in West Bengal and outside, the WBSEDCL and the Damodar Valley Corporation (DVC) supply electricity.

3. Subsequently, the DPL merged into the WBSEDCL. On November 16, 2019, the WBSEDCL issued a notification fixing maximum tariff for the command area where the petitioner is enjoying electricity.

4. Learned counsel for the petitioner argues that the tariff in the DVC Command Area is lower than the area where the petitioner is enjoying electricity, which is discriminatory. It is argued that the petitioner had originally been enjoying electricity in a multi-licensee area and had no say in its area of coverage being unilaterally converted to a monopoly area of the WBSEDCL. It is argued that the WBSEDCL, in the multi-licensee command area where the DVC is operating, is charging less tariff than the petitioner’s area. Such discrimination, it is argued, is patently violative of Article 14 of the Constitution of India.

5. It is argued that although the respondents have contended that the petitioner has not challenged the proviso to Section 62(1) of the Electricity Act, 2003 (hereinafter referred to as, “the 2003 Act”), the writ court can mould reliefs as the present challenge covers a wider spectrum of the discriminatory application of the proviso to Section 62(1) of the 2003 Act.

6. Learned counsel appearing for the petitioner, in support of the contention of the tariff being discriminatory, cites E.P. Royappa v. State of Tamil Ladu and another, reported at (1974) 4 SCC 3.

7. The action taken by the respondents in taking shelter of the proviso to Section 62(1), it is argued, is discriminative and illegal. In support of his arguments, learned counsel cites Vashist Narayan Kumar v. State of Bihar and others, reported at 2024 SCC OnLine SC 2.

8. Learned counsel next contends that the word “may” in Section 62(1), proviso has to be read in the context as “shall”, since the same confers powers on the Appropriate Commission for fixation of maximum ceiling of tariff, which is a mandatory direction upon the Commission for retail sale of electricity. It settled law, learned counsel submits, that, if a mandatory direction or power is conferred on an authority, the word “may” should be read as a mandatory “shall”. It is argued that there has been no fixation of maximum ceiling limit for electricity tariff for the sale of electricity in the petitioner’s area, thereby permitting the WBSEDCL to charge a higher rate in a monopoly area than a multi-licensee area, particularly the area covered by the DVC.

9. In support of his proposition in respect of the term “may”, learned counsel cites State of Uttar Pradesh. v. Jogendra Singh, reported at AIR 1963 SC 1618 and Ramji Missar and another v. State of Bihar, reported at AIR 1963 SC 1088.

10. Learned counsel next argues that in the present case, WBSEDCL, in its opposition, has referred to a letter dated July 25, 2014 addressed by the West Bengal Electricity Regulatory Commission (WBERC) to its Chairman and Managing Director. In paragraph 3(a) of the same, the onus of introduction of non-competitive tariff has been shifted upon the State of West Bengal. It is argued that under Section 62(1), proviso of the 2003 Act, the Appropriate Commission i