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2012 Supreme(Jhk) 393
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Prakash Tatia, and P. P. Bhatt, J
M/s Balmukund Sponge & Iron Ltd.
Vs.
The Union of India & Ors.
W.P.(C) No. 4097 of 2011 M/s Gautam Ferro Alloys Vs. With W.P.(C) No. 4073 of 2011 M/s Bihar Foundry & Castings Ltd.Vs. With W.P.(C) No. 4223 of 2011 M/s Bhuwania Associates Pvt. Ltd. Vs. With W.P.(C) No. 4245 of 2011 M/s Hanuman Alloys Pvt. Ltd. Vs. With W.P.(C) No. 4338 of 2011 M/s Super Steel Casting Ltd. Vs. With W.P.(C) No. 4493 of 2011 M/s Tulshyan Metals Pvt. Ltd. Vs. With W.P.(C) No. 4495 of 2011 M/s Maihar Alloys Pvt. Ltd. Vs. With W.P.(C) No. 4497 of 2011 M/s Anjaney Ferro Alloys Ltd. Vs. With W.P.(C) No. 4498 of 2011 M/s Calcutta Carbide Pvt. Ltd. Vs. With W.P.(C) No. 4500 of 2011 M/s Dayal Steel Ltd. With W.P.(C) No. 4510 of 2011 M/s Shree Bholey Alloys Pvt. Ltd. With W.P.(C) No. 4517 of 2011 M/s Balasree Metals Pvt. Ltd. Vs. With W.P.(C) No. 4524 of 2011
Decided On : 20th March, 2012
For the Petitioners:M/s Ajit Kumar, Vijay Kr. Gupta, Prabhat Singh, Gouri Shankar Prasad, Vikash Kumar, Rahul Kumar, Sweta Rani and Kumar Sundaram & Dhananjay Kr. Pathak, Advocates
For the Petitioners:M/s Rajiv Ranjan, Abhay Kumar Mishra, Shresth Gautam & Vishal Kr. Trivedi, Advocates
For the Petitioner:M/s Rajesh Shankar, Abhay Prakash, Dheeraj Kumar, Advocates
For Respondent (Union of India): M/s Mr.M.Khan,ASGI,& Y.N.Mishra, CGC, Prabhash Kumar,CGC & T.N.Mishra,CGC
For Respondent(DVC):M/s Pradip Tarafdar, Sr. Adv.,(DVC) Srijit Choudhary, Prashant Kr. Singh & Rakesh Kumar Shahi & Rohit Roy
For Respondent(CERC):Mr.Sumit Gadodia,Advocate
Headnote:(A) Constitution of India---Article 226 read with Section 111 of Electricity Act, 2003 and Regulation 5(4) of Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations, 2009---Challenge is to constitutional validity of Regulation 5(4), which cannot be challenged in appeal u/s 111---Writ petitions cannot be dismissed on ground of availability of alternative remedy---Petition cannot be rejected summarily without examining the issue in detail. (Para 25)
(B) Indian Evidence Act , 1872---Section 116---Estoppel---There cannot be estoppel against law---An illegal law cannot become legal by conduct of parties. (Para 25)
(C) Electricity Act, 2003---Sections 178, 64, 94(2) and 62 r/w Regulations 5(4) and (3) of Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations, 2009 and Section 20 of Damodar Valley Corporation Act---Power of Commission to pass provisional tariff order---Commission even without Regulation 5(4) had power to prescribe provisional tariff---It can make regulation for providing for provisional tariff---Regulation 5(4) is neither beyond legislative competence of CERC nor transgress Electricity Act. (Paras 27 to 34)
(D) Electricity Act, 2003---Sections 64(3)(a) and 64(3)(b) r/w Regulation 5(4) of Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations, 2009---Determination of tariff----In view of Sections 64(3)(a) and 64(3)(b) exclusion of personal hearing to the members of public is implied and permissible---If audi alteram partem rule is invoked, if it has the effect of paralyzing the administrative process or where the need for promptitude or the urgency of taking action so demands, then in that situation application of rule of audi alteram partem cannot be applied. (Paras 35 to 44)
(E) Interpretation of Statutes---Purposive construction---It is presumed that Legislature has purposefully used languages differently in different places in same section of Statute. (Para 40)
(F) Natural Justice---Exclusion---Where nature of action to be taken, its object and purpose and scheme of relevant statutory provisions warrant its exclusion , it can be excluded---Requirement of natural justice depends on facts and circumstances of case, nature of inquiry and rules under which tribunal is acting. (Paras 41 and 44)
(1984)1 SCC 43---Relied upon.
AIR 1968 SC 445; (2011)5 SCC 29; (2006)4 SCC 327; (2007)6 SCC 668; (2011)2 SCC 255; (2008)4 SCC 144; (2010)7 SCC 678; (2010)9 SCC 496; (2002)8 SCC 715; (2004)5 SCC 430; (2009)6 SCC 235; (2009)11 SCC 244; (2010)4 SCC 603; (2006) 12 SCC 753; 1989 Supp.(2) SCC 52; (1985)2 SCC 16; (1995)6 SCC 289; (2009)5 SCC 641 : 2009(2) PLJR (SC)223 : 2009(2) JLJR (SC)167; (1987)1 SCC 424; (1985)3 SCC 398; (1996)4 SCC 69; AIR 1966 SC 671; (1979)4 SCC 458---Referred to.
(1985)3 SCC 398---Followed.
Prakash Tatia,C.J. :
Bunch of writ petitions have been preferred by these writ petitioners, who are obtaining electricity supply from the respondentDamodar Valley Corporation (hereinafter to be referred as 'DVC'), a licensee under the Electricity Act, 2003, having its registered office at DVC Towers, VIP Road, Kolkata.
2. All the writ petitioners have challenged the validity of Clause(4) of Regulation no. 5 of the Central Electricity Regulatory Commission( Terms and Conditions of Tariff) Regulation, 2009 inserted by amendment dated 2nd May, 2011 being ultravires the Constitution of India and/or transgress the Electricity Act, 2003 and also aggrieved against the order dated 23rd June, 2011 passed by the Central Electricity Regulatory Commission on the basis of the said Regulation 5(4) and further aggrieved against the various bills issued against these writ petitioners following the order dated 23rd June, 2011 of the Central Electricity Regulatory Commission ( in short 'CERC'), determining the provisional tariff to the respondentDVC vide order dated 23rd June, 2011.
3. It will not be necessary to give detailed facts of each of the writ petitions with respect to their terms and conditions of the supply of the Electricity by the DVC and details of the bills which have been challenged because of the reason that issue raised in these writ petitions do not require those details. However, the writ petitioners are consumers and are obtaining supply of electricity from the DVC.
4. The DVC was constituted by the Damodar Valley Act, and is a licensee under the 4th proviso to Section 14 of the Electricity Act, 2003. Earlier DVC used to determine its own tariff under Section 20 of the DVC Act and that position continued till Jharkhand State Electricity Regulatory Commission(in short 'JSERC' ) issued order on 6th September, 2004 in Case No. 4 of 2004 that DVC should get its generation tariff determined , obviously from JSERC. But DVC took the stand that it was outside the jurisdiction of the JSERC and preferred a writ petition before this Court which was dismissed by this Court, however, on account of non removal of the defect by the DVC.
5. Be that as it may, CERC in the year 2004 initiated suo motu proceeding by registering Petition no. 168 of 2004 against DVC and issued direction to the DVC to file application for determination of its tariff because of the reason that by that time the DVC did not file its tariff application. On 29th March, 2005 CERC passed an order, directing DVC to submits its application for approval of tariff w.e.f. 1st April, 2004, upon which on 8th June, 2005 DVC submitted tariff Petition no.66 of 2005 for the period 1.4.2004 to 31.3.2009 and still continued to charge tariff fixed by it under Section 20 of the DVC Act which, according to the petitionerSteel Authority of India Ltd., was contrary to the provisions of the Electricity Act. In background of these facts, ultimately, the CERC passed tariff order on 3rd October, 2006 for the period 200609 for the DVC. The said tariff order was challenged by some of the consumers in Appeal No. 271 of 2006 and 272 of 2006 before the Appellate Tribunal and DVC also preferred Appeal No.273 of 2006 against the same tariff order dated 3rd October, 2006 for the period 200609. The Appellate Authority allowed Appeal No. 273 of 2006 preferred by DVC and also disposed of other appeals by the order dated 23rd November, 2007. The order of the Appellate Authority dated 23rd November, 2007 was challenged before the Hon'ble Supreme Court in Civil Appeal No.971973 of 2008. Even CERC also preferred Civil Appeal No.4289 of 2008 before the Hon'ble Supreme Court against the order dated 23rd November, 2007 passed by the Appellate Tribunal. However, in none of the appeals pending before the Hon'ble Supreme Court, operation of the order passed by the Appellate Tribunal was stayed. Therefore, some of the issues are pending before the Hon'ble Supreme Court which may have some bearing on fina
