Future revision of tariff to be done by commission.

B. SUBHASHAN REDDY, C.J. :- At issue, is the constitutionality of revision of power tariff by the State of Tamil Nadu. Tamil Nadu Electricity Board prepares budget estimates every year and they are placed before the State Legislature. For the year 2001-2002 too, such Budget estimate was prepared and was placed before the State Legislature. The revenue gap, after compiling, between the receipts and expenditure, was arrived at Rs. 2,747.59 crores. Responding to the same, the Government had issued G.O.Ms. No. 95, dated 28-11-2001 revising power tariff but on representation being made, the escalation in power tariff was slightly reduced by later G.O.Ms. No. 96, dated 5-1-2001, making the said modification applicable only to domestic consumers. G.O.Ms. No. 95 became effective from 1-12-2001 as modified by G.O.Ms. No. 96. The above three writ petitions are pro bono publico. First in order W.P. No. 23807 of 2001 followed by W.P. Nos. 25219 and 25220 of 2001. While the power to enhance the power tariff is in question in W.P. Nos. 23807 and 25219 of 2001, the relief sought for in W.P. No. 25220 of 2001 is quite different, as, in the said writ petition, a mandamus is sought for to direct the first respondent-Government to convene the Selection Committee to select and appoint the Chairperson and the Members of the Tamil Nadu State Electricity Regulatory Commission. Though in the first writ petition, the challenge initially was to G.O.Ms. No. 95, an amendment was sought to challenge G.O.Ms. No. 96 and the said amendment petition was allowed.

2. Mr. K. M. Vijayan, learned senior counsel, appeared for the petitioner in W.P. No. 23807 of 2001 while Mr. Sriram Panchu, learned senior counsel, appeared for the petitioners in other petitions viz., W.P. Nos. 25219 and 25220 of 2001. The State was defended by Mr. R. Muthukumaraswamy, learned Additional Advocate General. Mr. K. S. Natarajan, learned counsel, appeared for the State Regulatory Commission. Mr. Vasudevan, learned counsel, appeared for the Tamil Nadu Electricity Board.

3. In first two writ petitions, the questions raised are not only regarding the power of the State Government to revise power tariff but also regarding the quantum of escalation, as being arbitrary and unreasonable. But during the arguments, both M/s. K. M. Vijayan and Sriram Panchu, learned senior counsel, gave up the issue relating to the quantum of escalation of power tariff and confined their arguments on the power and jurisdiction of the State Government in revising power tariff. The learned senior counsel submit that after the enactment of Electricity Regulatory Commissions Act, 1998 by the Parliament, the State Government ceased to have any role in the matter of revision of tariff for the user of electrical energy and that the said power is vested only with State Electricity Regulatory Commission and as such, the impugned Governmental orders are non est in law and the power tariff revision ordered therein, is unenforceable.

4. Mr. K. S. Natarajan, learned counsel appearing for the Tamil Nadu State Electricity Regulatory Commission, supports the said argument and submits that the Commission came into force and had been functional ever since July, 1999 and that the impugned Governmental Orders G.O.Ms. Nos. 95 and 96 are fit to be struck down.

5. Countering the said arguments, Mr. R. Muthukumaraswamy, learned Additional Advocate General, appearing for the State of Tamil Nadu, submits that even though the Parliament had enacted Central Act 14 of 1998, providing for the Constitution of both Central and State Regulatory Commissions, the State Electricity Regulatory Commission did not come into force and had been non-functional, and as there was huge revenue deficit, as is evident from the statement submitted by the Tamil Nadu Electricity Board, it was imperative on the part of the State Government to effect the revision without further loss of time, as, making the Commission functional would entail in further delay