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2012 Supreme(Jhk) 404
[2012 (2) JCR 265 (Jhr)]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
P. P. BHATT, Prakash Tatia JJ.
M/s Gautam Ferro Alloys
Vs.
The Union of India & Ors.
In W.P.(C) Nos. 4097, 4073, 4223, 4245, 4338, 4497, 4510, 4114, 4197, 4190, 4163, 4198, 4110, 4132, 4107, 4104, 4103, 4108, 4080, 4085, 4086, 4087, 4088, 4089, 4090, 4092, 4094, 4099, 4894, 4891, 5068, 5078, 5210 & 5075 of 2011
Decided On : 20th March, 2012
In W.P.(C) Nos. 4097, 4073, 4223, 4245, 4338, 4497, 4510, 4114, 4197, 4190, 4163, 4198, 4110, 4132, 4107, 4104, 4103, 4108, 4080, 4085, 4086, 4087, 4088, 4089, 4090, 4092, 4094, 4099, 4894, 4891, 5068, 5078, 5210 & 5075 of 2011
N.K. Pasari & A.K.Pasari, Advocates
In W.P.(C) Nos. 4493, 4495, 4498, 4500, 4517, 4524, 4527, 5155, 5164, 5200, 5246 & 5379 of 2011:
Ajit Kumar, Vijay Kr. Gupta, Prabhat Singh, Gouri Shankar Prasad, Vikash Kumar, Rahul Kumar, Sweta Rani and Kumar Sundaram & Dhananjay Kr. Pathak, Advocates
In W.P.(C) Nos. 4324 & 4259 of 2011:
Rajiv Ranjan, Abhay Kumar Mishra, Shresth Gautam & Vishal Kr. Trivedi, Advocates
In W.P.(C) No. 4979 of 2011:
Rajesh Shankar, Abhay Prakash, Dheeraj Kumar, Advocates
Mr. M.Khan,ASGI,& Y.N.Mishra, CGC, Prabhash Kumar,CGC & T.N.Mishra,CGC
Pradip Tarafdar, Sr. Adv.,(DVC) Srijit Choudhary, Prashant Kr. Singh & Rakesh Kumar Shahi & Rohit Roy
Sumit Gadodia,Advocate
Headnote:
The High Court of Jharkhand dismissed a batch of writ petitions challenging the validity of Clause (4) of Regulation 5 of the Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulation, 2009, inserted by amendment dated 2nd May, 2011. The petitioners, who were electricity consumers, contended that the impugned provision was ultra vires the Constitution of India and/or transgressed the Electricity Act, 2003, and also aggrieved against the order dated 23rd June, 2011 passed by the Central Electricity Regulatory Commission (CERC) 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. The Court held that the CERC had the power to make regulations for providing for provisional tariff as it also had the power to frame Regulation for determination of final tariff. Therefore, Regulation 5(4) was neither beyond legislative competence of the CERC nor transgressed the Electricity Act, 2003. The Court further held that the Commission was not required to give an opportunity of hearing to any person before making of final tariff order. The Court also held that the impugned order dated 23rd June, 2011 was not a non-speaking order and the Commission had applied its mind to the facts of the case before passing the order.
Fact of the Case:
The petitioners, who were electricity consumers, contended that the impugned provision was ultra vires the Constitution of India and/or transgressed the Electricity Act, 2003, and also aggrieved against the order dated 23rd June, 2011 passed by the Central Electricity Regulatory Commission (CERC) 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.
Finding of the Court:
The Court held that the CERC had the power to make regulations for providing for provisional tariff as it also had the power to frame Regulation for determination of final tariff. Therefore, Regulation 5(4) was neither beyond legislative competence of the CERC nor transgressed the Electricity Act, 2003. The Court further held that the Commission was not required to give an opportunity of hearing to any person before making of final tariff order. The Court also held that the impugned order dated 23rd June, 2011 was not a non-speaking order and the Commission had applied its mind to the facts of the case before passing the order.
Issues: 1. Whether the CERC had the power to make regulations for providing for provisional tariff? 2. Whether the Commission was required to give an opportunity of hearing to any person before making of final tariff order? 3. Whether the impugned order dated 23rd June, 2011 was a non-speaking order?
Ratio Decidendi: 1. The Court held that the CERC had the power to make regulations for providing for provisional tariff as it also had the power to frame Regulation for determination of final tariff. Therefore, Regulation 5(4) was neither beyond legislative competence of the CERC nor transgressed the Electricity Act, 2003. 2. The Court further held that the Commission was not required to give an opportunity of hearing to any person before making of final tariff order. 3. The Court also held that the impugned order dated 23rd June, 2011 was not a non-speaking order and the Commission had applied its mind to the facts of the case before passing the order.
Final Decision: The Court dismissed the writ petitions filed by the petitioners.
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 final determ
