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2008 Supreme(Guj) 184
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
D.A. Mehta, D.N. Patel, J.C. Upadhyaya, JJ.
Gujarat State Petroleum Corpn. Ltd. – Petitioner
Versus
The Union of India & Ors. – Respondents
Special Civil Application No. 18868 of 2007 With Special Civil Application No. 19045 of 2007 With Civil Application No. 3774 of 2008 in Special Civil Application No. 19045 of 2007 With Special Civil Application No. 19046 of 2007 With Special Civil Application No. 19047 of 2007 With Special Civil Application No. 19048 of 2007 With Special Civil Application No. 19049 of 2007 With Special Civil Application No.19050 of 2007 With Special Civil Application No. 23018 of 2007 With Special Civil Application No. 23019 of 2007 With Special Civil Application No. 23151 of 2007 With Special Civil Application No.4201 of 2008 With Special Civil Application No. 4468 of 2008 With Misc. Civil Application No. 2362 of 2007 Special Civil Application No. 18868 of 2007
Decided On : 16-05-2008
For the Petitioners:S.N. Soparkar, Senior Advocate, with Aspi M. Kapadia, Advocates.
For the Respondents No. 1 – Union of India:- Gopal Subramanian, Addl. Solicitor General of India, with Harin Raval, Assistant Solicitor General of India, with Rashmin M. Chhaya, Central Government Standing Counsel with Ragenth Basant, Nishant Lalakiya and Param Buch, Advocates.
For the Respondents No. 2 – Petronet Lng Ltd:- Nirupam Nanavaty, Senior Advocate with Maulik Nanavati with N.L. Ganapathi with Dhananjay Shahi, Advocates.
For the Respondents No. 3 – Gail:- Mihir Thakore, Senior Advocate with Rakesh Gupta and Abhishek Mehta for Trivedi & Gupta Advocates.
For the Respondents No. 4–IOCL:- Suresh N. Shelat, Senior Advocate, with Manish Bhatt with Dhara M. Shah, Advocates.
For the Respondents No. 5–BPCL:- Ashish Dholakia with Pathik Acharya, Advocates.
For the Respondents No. 6-(Ratnagiri):- Devang Nanavati with Saurin Mehta and R.H, Parikh, Advocates.
For the Respondents No. 7 – State of Maharashtra:- Nagendra Rai, Senior Counsel, Amit Kapur for Nachiketa S. Joshi, Sudhakar B. Joshi, Apoorva Misra, Ravi Prakash and Varun Agarwal, Advocates.
For the Respondents No. 8-MSEDCL:- Vikas Singh, Additional Solicitor General of India & Senior Counsel, Amit Kapur, for Nachiketa S. Joshi, Sudhakar B. Joshi, Apoorva Misra, Ravi Prakash and Varun Agarwal, Advocates.
Important Point
Decision dated 6th March,2007 taken by Union of India is a policy decision for pooling price of Regasified Liquefied Natural Gas and same is neither arbitrary, nor it is unjust, nor violative of fundamental rights, nor violative of constitutional rights.
Headnote:
Per D.N. Patel, J (For himself and on behalf of Mr. Justice J.C. Upadhyaya(Majority View)
(A) Constitution of India—Entry No. 53 of List I—Regasified Liquefied Natural Gas—Fixation of non-discriminatory price—There is no law for fixing price of gas—Regasified Liquefied Natural Gas (RLNG) is nothing but a gaseous form of natural gas and it is covered under entry no.53 of List I - Union List and is not covered by entry no.25 of List II - State List—For RLNG, Union of India is having legislative competence to enact a law—As per Article 73 of Constitution of India, Executive Powers are extended with respect to Regasified Liquefied Natural Gas—There is a power or competence with Union of India for taking a policy decision for Regasified Liquefied Natural Gas.
(B) Regasified Liquefied Natural Gas—Fixation of non-discriminatory price— Conscious decision has been taken by Empowered Group of Ministers (EGOM) to bring under one denomination, consumers of long term contracts and future consumers, on non-discriminatory basis—Union of India has considered all relevant aspects of matters—Alternative arrangements have also been discussed like use of Naphtha, for manufacturing of electricity, etc. and ultimately, it has been concluded to bring all consumers of long term contracts and future consumers of Regasified Liquefied Natural Gas, under one denomination and price has been fixed on non-discriminatory basis, for both these type of consumers—There is no flaw or mistake in decision making process by Empowered Group of Ministers—Prima facie, there is a nexus with policy decision of pooling of price and welfare of public at large—Court is not a Cost Accountant for detailed calculation as to what price is to be fixed for Regasified Liquefied Natural Gas—Statistical accuracy and mathematical nicety, is not to be checked by Supreme Court.
(C) Administrative Law—Policy Decision—There is vast a difference between set norms of public policy, based upon precedents and policy decision, which is a decision, taken by Government for management of public affairs—Policy decision is neither a static nor a stagnant one—Policy decision depends upon prevailing situation in the country—In facts of present case, it also depends upon demand and supply—Impugned policy decision is a price fixing of RLNG, which is absolutely different, from a public policy concept, to be read with contract and contractual obligation.
(D) Regasified Liquefied Natural Gas—Fixation of non-discriminatory price— Impugned policy decision is rational and it is in favour of rank and file of India—There is no fundamental right or constitutional right vested in petitioners to get Regasified Liquefied Natural Gas at fixed price—There is no breach of any of provisions of Constitution of India, by policy decision—Consumers of long term contracts are class by themselves as against consumers of spot cargo and consumers covered under Administrated Pricing Mechanism—It is not open for Supreme Court to quash policy decision only on the ground that why another class of consumers are not brought under one denomination for pooling of price as it is also a policy decision, which class of consumers is to be considered for pooling of the price—Policy decision is a very complex decision, having far reaching consequences in India, for public as well as for industry and, in such type of policy decision which is fixing price of natural gas and which is used as a raw material, has at a time number of effects upon power sector, fertilizer, upon public, etc.—There may be crudities and inequities in complicated experimental economic decision, but on that account alone, it cannot be struck down as invalid.
(E) Regasified Liquefied Natural Gas—Fixation of non-discriminatory price—Claim for refund—Petitioners, who are "consumers" as well as "further consumers" are not really aggrieved parties—They have suffered no loss—They have passed burden of increased price of Regasified Liquefied Natural Gas to further downstream consumers— If refund is allowed to petitioners, it will tantamount to unjust enrichment—Once burden is passed to downstream consumers by petitioners, they are not entitled for refund.
Facts of Case:
Principal challenge in these petitions is Central Government directive issued by way of communication dated 06/03/2007. Question of prices to be charged for Regasified Liquefied Natural Gas (RLNG) from different customers has been under consideration of Government. After considering existing practices and to avoid loading high cost of additional RLNG being made available to prospective customers, it has been decided, after examination of all aspects, in public interest, that gas prices being charged on supply of RLNG procured under long term contracts should be on a non-discriminatory basis and uniform pooled prices should be charged from all existing and new consumers.
Findings of Court:
Impugned decision taken by Union of India dated 6th March,2007, is a policy decision for pooling price of Regasified Liquefied Natural Gas. Union of India is competent to take this policy decision and the same is neither arbitrary, nor it is unjust, nor violative of fundamental rights, nor violative of constitutional rights nor the same is violative of statutory rights of petitioners and petitioners have failed to establish that they have borne burden of increase in price of Regasified Liquefied Natural Gas without passing the same to their further consumers, hence, are not entitled to refund. There is no violation of Article 14 or right of equality of petitioner. Decision taken by Union of India is neither arbitrary nor is unjust.
Result—Petitions dismissed.
D.A. Mehta, J.
1. Someone who thinks logically is a nice contrast to the real world. Normally that is what is required of a judge. While adjudicating a lis a judge is expected not to fall prey to over simplified generalisations made on basis of cited, but inapplicable, precedents. The problem of stereotyping is that it makes particular into the general, often leading to wholly misleading conclusions.
2. This group of petitions has been heard by the Larger Bench constituted in compliance with directions issued by the Hon'ble Supreme Court vide order dated 26.02.2008 in Petition(s) for Special Leave to Appeal (Civil) No(s) 21397-21399 of 2007 which reads as under:
"Transfer Petition (c) Nos. 513-515 of 2007 and 557-564 of 2007 are taken on Board. These special leave petitions have been filed against the interim order(s) passed by the High Court of Gujarat refusing stay to the petitioners during the pendency of the writ petitions.
Petition(s) for Special Leave to Appeal (Civil) No(s). 21397-21399/2007.
Learned Senior Counsel appearing for the petitioners as well as learned Solicitor General and Additional Solicitor Generals and other respective counsel are agreed for disposal of these special leave petitions in the following terms :
1. We would request the Hon'ble Chief Justice of the Gujarat High Court to constitute a three Judge Bench by 07th March, 2008 and the hearing of the writ petitions shall start from the 10th March, 2008 on day do day basis and dispose them off as expeditiously as possible, without being influenced by any of the observations made in the impugned orders.
2. In case, the petitioners succeed, then the High Court would be at liberty to pass such directions as it may deem fit regarding refund of the amount in accordance with law.
3. All contentions are left open. Ordered accordingly.
Transfer Petition(c) Nos. 513-515 of 2007 have been filed seeking transfer of Special Civil Application No. 18868/2007 pending in the Gujarat High Court to the High Court of Delhi and to be heard along with WP(C) No. 5098 of 2007 pending in the High Court of Delhi on the same point whereas Transfer Petition (C) Nos. 557-564 of 2007 have been filed by the Union of India seeking transfer of writ petitions pending in the Gujarat High Court as well as Delhi High Court to this Court.
In view of the aforesaid order passed by us today in the special leave petitions, transfer petitions seeking transfer of writ petitions pending before the Gujarat High Court have become infructuous and are dismissed as such. Insofar as Civil Petition(s) for Special Leave to Appeal (Civil) No(s). 21397-21399/2007
Writ Petition No. 5098 of 2007 pending before the Delhi High Court is concerned, since we have disposed of the special leave petitions by requesting the Gujarat High Court to dispose of the writ petitions pending before it, we deem it appropriate to transfer the writ petition pending before the High Court of Delhi to the Gujarat High Court and to be heard along with the writ petitions pending before the Gujarat High Court. We order accordingly. We would request the Hon'ble Chief Justice of the High Court of Delhi to direct the Registrar, High Court of Delhi to forthwith transfer the entire record relating to writ petition No. 5098 of 2007 to the Gujarat High Court so as to reach there before 07th March,2008. It is also brought to our notice that one more writ petition bearing No. 4853 of 2007 is pending before the High Court of Madhya Pradesh, Gwalior Bench on the same point. Although the parties are not before us but keeping in view the facts and circumstances of the case and in order to avoid conflicting decisions and further delay in the hearing of the writ petitions before the Gujarat High Court, the same is also transferred to the Gujarat High Court. We would request the Hon'ble Chief Justice of the High Court of Madhya Pradesh to direct the Registrar, High Court of Madhya Pradesh to forthwith transfer the entire record relating to writ
