2015 Supreme(SC) 718

SUPREME COURT OF INDIA
Dipak Misra, Uday Umesh Lalit, JJ.
Petroleum and Natural Gas Regulatory Board - Appellant
Vs.
Indraprastha Gas Limited & Ors. - Respondents
CIVIL APPEAL NO.4910 OF 2015
[Arising out of SLP (Civil) No. 22273 of 2012]
Decided On : 1-07-2015

IMPORTANT POINTS
There is distinction between ‘common carrier pipeline and contract carrier pipeline’ and ‘city or local natural gas distribution network’.
Expression ‘subject to’ elaborated.
Section 22 of Petroleum and Natural Gas Regulatory Board Act, 2008 providing for determination of tariff has to yield to Section 11 dealing with powers and functions of the Petroleum and Natural Gas Regulatory Board.
Opinion of Union of India on a provision cannot be necessarily taken to be correct one because no one can speak on behalf of the legislature. It is the court which is the final interpreter.
Entities which are not “common carriers” or “contract carriers” consciously excluded from section 11.
Petroleum and Natural Gas Regulatory Board (Determination of Network Tariff for City or Local Natural Gas Distribution Networks and Compression Charge for CNG) Regulations, 2008 is ultra vires the Act.

Headnote:(a) Petroleum and Natural Gas Regulatory Board Act, 2008 – Section 2 – Common carrier pipeline and contract carrier pipeline – City or local natural gas distribution network – Distinction – Common or carrier pipeline refer to pipelines for transportation of petroleum or petroleum products and natural gas by more than one entity – City or local gas distribution network on the other hand is specifically a pipeline network for transport of natural gas to its own consumers. (Para 16)

       (b) Petroleum and Natural Gas Regulatory Board Act, 2008 – Section 20 and 22 – Board empowered to declare an existing pipeline for transportation of petroleum, petroleum products and natural gas or an existing city or local natural gas distribution network as a common carrier or contract carrier and regulate or allow access to such pipeline or network – Board also empowered to provide the transportation tariff for common carrier or contract carrier or city or local natural gas distribution network and the manner of distribution of such tariffs. (Para 16, 18)

       (c) Section 22(1) – Board’s power to provide transportation tariff – Expression ‘subject to’ – Means conditional one – A provision yielding place to another provision or other provision. (Para 20)

       (1977) 3 SCC 362; (2004) 3 SCC 1; AIR 1961 SC 1152; AIR 1964 SC 207; AIR 1969 SC 118 – Relied upon

       (d) Petroleum and Natural Gas Regulatory Board Act, 2008 – Section 22 r/w 11(e), (f) – Board empowered by section 11(e) (ii) to determine transport rates for common carrier or contract carrier – Sub-section (f) of Section 11 allows the Board to regulate in respect of notified petroleum, petroleum products and natural gas – Sub-section (e) (iii) empowers the Board to regulate access to city or local natural gas distribution network so as to ensure fair trade and competition amongst entities as per pipeline access code – Expression ‘subject to the provisions of this Act” in section 22 – Section 22 has to yield to Section 11 dealing with powers and functions of the Board – Section 11 (e) only uses the words “common carrier” or “contract carrier” – Function of the Board is of regulating inter se relationship of entities under – Not to regulate/control relationship between the entities and the consumers. (Para 22, 23)

       (e) Interpretation of statute – Opinion of Union of India on a provision – Cannot be necessarily taken to be correct one – No one can speak on behalf of the legislature – It is the court which is the final interpreter. (Para 24)

       (f) Interpretation of statute – Casus Omissus – Existence of casus omissus – Language of the provision otherwise plain and unambiguous – Court not competent to supply the omission by engrafting on it or introducing in it – An attempt must always be made to reconcile the relevant provisions so as to advance the remedy intended by the statute by harmonious construction and determining legislative intention. (Para 25)

       (1975) 4 SCC 22; (1846) 6 Moore PC 1 : 13 ER 562; (1980) 1 SCC 370; 1898 AC 735; (1981) Supp. SCC 87; (2012) 9 SCC 552; (1980) 1 WLR 142 : (1980) 1 All ER 529 (HL); (2014) 2 SCC 62 – Relied upon

       (g) Petroleum and Natural Gas Regulatory Board Act, 2008 – Section 11 – Entities which are not “common carriers” or “contract carriers” consciously excluded from section 11 – Non-inclusion does not lead to any absurdity – No casus omissus – No need to supply supposed omission. (Para 30)

       (1991) 2 SCC 87 – Relied upon

       (h) Petroleum and Natural Gas Regulatory Board Act, 2008 – Section 61(2)(t) – Transportation tariff for “common carrier” and “contract carrier” or “city or local natural gas distribution network” – Determination as per sub-section (1) of Section 22 – Should be subject to section 11 – Section 61 empowering the Board to frame Regulations – Petroleum and Natural Gas Regulatory Board (Determination of Network Tariff for City or Local Natural Gas Distribution Networks and Compression Charge for CNG) Regulations, 2008 – Centering round determination of tariff to consumers – Act not empowering Board to fix the tariff – Board cannot frame a Regulation which will cover the area pertaining to determination of network tariff for city or local gas distribution network and compression charge for CNG - 2008 Regulations rightly held ultra vires by High Court. (Para 34, 43)

       (2003) 3 SCC 321; (2000) 3 SCC 40; (1983) 2 SCC 402; (1975) 1 SCC 421; (1988) 2 SCC 351; (2006) 4 SCC 517; (2012) 7 SCC 683; AIR 1963 SC 274; (2009) 16 SCC 659; (2011) 8 SCC 274 – Relied upon

       Facts of the case:

       The respondent filed writ petition assailing the order dated 9.4.2012 issued by the Board determining the network tariff and compression charges for CNG in respect of Delhi City Gas Distribution (CGD) network of the petitioner at Rs.38.58 per MMBtu and Rs.2.75 per kg. respectively w.e.f. 01.04.2008 and directing the petitioner therein to recover the said network tariff and compression charges for CNG separately through an invoice, without any premium or discount on a non-discriminatory basis and to appropriately reduce the selling price of CNG from the date of issuance of the order. The Board left the modalities and time frame for refund of differential network tariff and the compression charges for CNG recovered by the petitioner therein w.e.f. 1.4.2008 in excess from its consumers to be decided subsequently.

       The writ petition was allowed by the High Court.

       Finding of the Court:

       Regulations 2008 is ultra vires.

       Result: Appeal dismissed.