Jharkhand High Court
M/S Jharkhand Ispat Private Li vs Union Of India & Ors on 24 August, 2011
Author: Jaya Roy
Bench: Jaya Roy
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 4097 of 2011
M/s Gautam Ferro Alloys Vs. The Union of India & Ors.
With
W.P.(C) No. 4073 of 2011
M/s Bihar Foundry & Castings Ltd.Vs. The Union of India & Ors.
With
W.P.(C) No. 4223 of 2011
M/s Bhuwania Associates Pvt. Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4245 of 2011
M/s Hanuman Alloys Pvt. Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4338 of 2011
M/s Super Steel Casting Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4493 of 2011
M/s Tulshyan Metals Pvt. Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4495 of 2011
M/s Maihar Alloys Pvt. Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4497 of 2011
M/s Anjaney Ferro Alloys Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4498 of 2011
M/s Calcutta Carbide Pvt. Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4500 of 2011
M/s Dayal Steel Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4510 of 2011
M/s Shree Bholey Alloys Pvt. Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4517 of 2011
M/s Balasree Metals Pvt. Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4524 of 2011
M/s Balmukund Sponge & Iron Ltd.Vs. The Union of India & Ors.
With
W.P.(C) No. 4527 of 2011
M/s Millennium Ingots & Steel Company Pvt. Ltd.
Vs. The Union of India & Ors.
With
W.P.(C) No. 4114 of 2011
M/s Sundram Ferro Tech Pvt. Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 1497 of 2011
M/s Hindustan Melleables & Forging Limited Vs.
The Union of India & Ors.
With
W.P.(C) No. 4190 of 2011
M/s MDA Projects India (P) Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4163 of 2011
M/s Puja TMT Plant Pvt.Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4198 of 2011
M/s Shreewali Ferro Tech Pvt. Ltd.Vs. The Union of India & Ors.
With
2
W.P.(C) No. 4110 of 2011
M/s Jai Durga Iron (P) Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4132 of 2011
M/s Bishwanath Ferro Alloys Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4107 of 2011
M/s Naiyadih Hi-Tech Pvt. Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4104 of 2011
M/s Saluja Steel & Power (P) Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4103 of 2011
M/s Santpuria Alloys Pvt. Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4108 of 2011
M/s Mongia Steel Ltd Vs. The Union of India & Ors.
With
W.P.(C) No. 4324 of 2011
Steel Authority of India Ltd.
Vs. Central Electricity Regulatory Commission & Ors
With
W.P.(C) No. 4259 of 2011
M/s ACC Ltd. Vs. The Secretary,
Central Electricity Regulatory Commission & Ors.
With
W.P.(C) No. 4073 of 2011
M/s Bihar Foundary & Castings Ltd.Vs. The Union of India & Ors.
With
W.P.(C) No. 4080 of 2011
M/s Atibir Industries Co. Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4085 of 2011
M/s Shivam Iron & Steel Co. Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4086 of 2011
M/s Atibir Industries Co. Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4087 of 2011
M/s Jharkhand Ispat Private LimitedVs. The Union of India & Ors.
With
W.P.(C) No. 4088 of 2011
M/s Aloke Steel Industries Pvt. Ltd.Vs. The Union of India & Ors.
With
W.P.(C) No. 4089 of 2011
M/s Shivam Iron & Steel Co. Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4090 of 2011
M/s Bir Steels Pvt. Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4092 of 2011
M/s Lall Iron & Steel Co. Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4094 of 2011
M/s Atibir Hi-Tech Pvt. Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4099 of 2011
M/s Balajee Electrosteels Ltd. Vs. The Union of India & Ors.
3
With
W.P.(C) No. 4894 of 2011
M/s Parth Ispath (India) Pvt. Ltd. Vs. The Union of India & Ors.
With
W.P.(C) No. 4891 of 2011
M/s Yash Alloys Pvt. Ltd. Vs. The Union of India & Ors.
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MRS. JUSTICE JAYA ROY
- -----
For the Petitioners : Mr. N.K. Pasari
For the Respondents : M/s Kalyan Kumar Bandopadhya, R.S.
Mazumdar, Sr. Advs., P.K. Tarafdar, S.
Choudhary, P.K. Singh, R. Roy,
P. Kumar, Advocates.
Reportable ------ Dated 24th August, 2011
Heard learned counsel for the parties on stay petition.
2. An interim order was passed on 1st August, 2011
restraining the Damodar Valley Corporation (in short DVC)
from recovering any amount in pursuance of the impugned
order dated 23.06.2011 from the writ petitioners up-to
24.08.2011(till today). The impugned order in the writ petition was passed on 23rd June, 2011 by the Central Electricity Regulatory Commission on Tariff Fixation Petition No. 240 of 2009 submitted by the DVC, by which, provisional tariff for electricity has been fixed by exercising power under Clause 4 of Regulation 5 of the Central Electricity Regulatory Commission (Terms and Conditions of Tariff) (First Amendment) Regulations, 2011 and the Commission allowed the provisional tariff for the entire period of the year from 2009-14, for which period petition to fix tariff was filed by the DVC. The Commission also made it clear that the provisional annual fixed charges allowed in the order is the subject to adjustment as per proviso to Clause (3) of Regulation 5 of the 2009 Regulations after final tariff order. The Commission at the same time in this very order directed the petitioner, obviously respondent-DVC, to file separate petitions for each 4 of the generating stations and transmission systems in accordance with Regulation 4 of the 2009 Regulations.
3. The facts of the case, which have been revealed from the arguments from the counsel of the parties disclosed that for the tariff for electricity for the period 2004-09, the tariff order was passed on 3rd October, 2009 by the Commission. However, that order was set aside and matter was remanded by the appellate Tribunal by order dated 23rd November, 2007 and upon remand again the Commission passed the final order, revising the tariff on 6th August, 2009, which too was challenged in appeal and the appellate Court confirmed the tariff order vide order dated 10th May, 2010. It is not in dispute that the said order of confirmation is subject matter before Supreme Court wherein no interim order staying the proceeding before the Commission with respect to determination of the tariff for the year 2009-14 has been passed. It is submitted by learned counsel for petitioners that Hon'ble Supreme Court has passed the interim order staying the repayment of excess amount collected by the DVC from the consumers, which is not the subject matter before this court in these writ petitions nor is relevant for the purpose of deciding about legality and validity of impugned order dated 23.6.2011 which is passed for the year starting after the period of tariff 2004-09 and, therefore, not relevant for examining whether the stay passed by this Court on 1st August, 2011 is required to be continued or required to be vacated. These facts have been taken note of because of the reason that learned counsel for the Commission try to explain the delay in determining the tariff by DVC for the year 5 2009-14.
4. The contention of the writ petitioners is that till new tariff is fixed by the Commission, the tariff of the year 2004-09 are binding and the petitioners are paying electricity charges according to said tariff fixed by the Commission. For the year 2009-14 a tariff petition was submitted by the DVC before the Commission on 26th October, 2009 and all of a sudden, after one and half year, on 23rd June, 2011, impugned order (Annexure-3) has been passed granting provisional tariff to the DVC by taking help of Sub-clause 4 of Regulation 5 of the Regulations 2011, which was inserted by amendment made in Regulation only on 2nd May, 2011. It is submitted that the DVC did not get its petition for final determination of the tariff decided for such a longer period from 26th October, 2009 and not only this but according to the writ petitioner M/s Gautam Ferro Alloys (W.P.(C) No. 4097 of 2011), the tariff petition was kept by the DVC pending deliberately till March, 2011 and for the first time in March, 2011 the DVC filed an Interlocutory Application No. 7 of 2011 for determination of its provisional tariff pending decision by the Commission in petition in question i.e., Petition No. 240 of 2009 for the period 2009-14 and subsequently DVC withdrew that Interlocutory Application and that fact has been recorded in the order dated 23 rd June, 2011 passed by the Commission.
5. Be that as it may be, according to the writ petitioners without there being any application, without any reason or any request from the DVC, without assigning any reason for passing the order on 23rd June, 2011 and without giving any reason for increase in the tariff affecting the rights of the writ 6 petitioners, the impugned order has been passed. The order under challenge is absolutely illegal and void in view of the fact that impugned order has been passed without application of mind and is not a speaking order. It is also submitted that by inserting Sub-clause 4 under Regulation 5, the Authorities have exceeded its jurisdiction as well as the said amendment is absolutely illegal, contrary to the Act and unjust also. Learned counsel for the petitioners also relied upon the provisions of Section 63 and 64 of the Electricity Act, 2003 and also submitted that as per Section 64 (3), the Commission was required to pass final order within a period of 120 days and in that situation the Commission, instead of passing any final order for such a long time since 26th October, 2009, on 23rd June, 2011 passed the interim order and as already stated, without there being any request from any of the parties. It is also submitted that one of the petitioners, Steel Authority of India Limited (W.P. (C) No. 4324 of 2011) has already submitted its objection before the Commission against the request for prescribing tariff for DVC for the year 2009-14 yet at the back of Steel Authority of India Limited impugned order has been passed..
6. Learned counsel for the petitioners also argued at length but since it is a matter relating to interim application, we need not give the details of the arguments.
7. Learned counsel for the DVC vehemently submitted that the writ petitions of the writ petitioners are misconceived and are not maintainable also. According to the counsel, remedy of appeal is available under Section 111 of the Electricity Act, 2003 wherein this interim order also could have been 7 challenged. It is also submitted that it is a matter relating to quashing of the order fixing interim tariff and by this interim order final relief has been granted to the writ petitioners which is contrary to the judgments of the Hon'ble Supreme Court delivered in the cases of State of Uttar Pradesh and Ors. Vs. Ram Sukhi Devi reported in 2004 AIR SCW 6955, Assistant Collector of Central Excise Vs. Dunlop India Ltd and others reported in (1985) 1 SCC 260 and also relied upon judgment delivered in the case of United Bank of India Vs. Satyawati Tondon and others reported in (2010) 8 SCC 110, wherein Hon'ble Supreme Court observed that in spite of repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedy. Hon'ble Supreme Court in a matter in relation to a dispute under the DRT Act and SARFAESI Act observed that interim orders in the matter of recovery of taxes and public revenue can be granted in exceptional cases and after careful examination as held by the Supreme Court in the case of Siliguri Municipality and others Vs. Amalendu Das and others reported in (1984) 2 SCC 436. Learned counsel for the petitioners submitted that there is no requirement of recording reasons by the Commission before passing the interim order and in such matters, it is not necessary to give detailed reasons as has been held by the Hon'ble Supreme Court in the case of The Siemens Engineering & Manufacturing Co. of India Ltd. Vs. Union of India and Another reported in (1976) 2 SCC 981.
8. Learned counsel for the DVC vehemently submitted that following the principle of natural justice may be a golden rule 8 of law but in view of the judgment delivered in the case of Union of India and Another Vs. Tulsi Ram Patel reported in (1985) 3 SCC 398, this principle can be given go by the statutory enactment and in that situation, opportunity of hearing to other parties is not at all necessary. Learned counsel for the respondent also relied upon the specific provision made in proviso under Clause 3 (6) of the Regulation framed by the Central Electricity Regulatory Commission on 29th July, 2004, which in unequivocal terms provides that "it shall not be necessary to give public notice of the application for approval of provisional tariff"; thereby by this statutory provision the principle of natural justice had been given go by and according to the learned counsel for the respondent unless that provision is quashed, which has not even been challenged, the petitioner cannot claim opportunity of hearing. Learned counsel for the respondent also submitted that even before the institution of Sub-clause 4 of Clause 5 providing for fixation for provisional tariff, a provision was already there in the terms and conditions of the Tariff of 2004 (for fixing of interim tariffs). Not only this but in the Electricity Act itself under Section 94 (2) power has been specifically given to the Commission to pass interim order and, therefore, it is not a new issue at all and thus the challenge to the legality and validity of insertion of Sub-clause 4 of Clause 5 is illusory and has been made only to avoid statutory remedy of appeal.
9. Learned counsel for the respondent justified the impugned interim order passed by the Commission and submitted that the amount which will be paid by the writ 9 petitioners will be adjusted even with interest in case the Commission takes a different view from that of the interim order relating to the liability of the writ petitioners. It is also submitted that this is a matter of public money and, therefore, the Court should be slow in granting interim order and the Hon'ble Supreme Court in so many cases in the matter of public revenue and public money held that the Court should not grant interim order.
10. Learned counsel for the Commission sought time for filing reply but in view of the insistence of the counsel for the DVC-respondent, who is really affected by stay order passed by this Court, has assisted the Court and submitted that the Commission had valid and reasonable ground for not deciding the main tariff application of the DVC itself even after lapse of almost one and half year and there was just reason for passing the impugned order before prescribing final tariff. The Commission has considered very many factors for fixing interim tariff. It is also submitted that the Commission has passed the order fixing the interim tariff for almost all the companies, of which the applications are pending for determination of the tariff.
11. We considered the submissions of the learned counsel for the parties and perused the relevant provisions of law and judgments cited by learned counsel for the parties, the Regulations and the Electricity Act as well as the judgment of the Hon'ble Supreme Court delivered in the case of PTC India Limited Vs. Central Electricity Regulatory Commission reported in (2010) 4 SCC 603, wherein it has been held that validity of the Regulations framed by the Commission cannot 10 be challenged in appeal under Section 111 of the Electricity Act which is under challenge in this writ petition. Be that as it may be, learned counsel for the respondent-DVC also did not press this point that the Regulation framed by the Commission can be challenged in appeal under Section 111 of the Electricity Act.
12. Here in this case, the interim order was passed after considering the arguments of the counsels for the writ petitioners and from the arguments which have been advanced, we are of the considered prima facie opinion that in the matter pending before the Commission since 26th October, 2009, the Commission has passed the interim order after one and half year, on 23rd June, 2011 and it is yet to find out whether the order dated 23rd June, 2011 was passed on the request of the DVC and as admitted by the learned counsel for the DVC that no written application had been filed by the DVC for fixing the provisional tariff and more important is that according to DVC itself, under Section 94 (2) of the Electricity Act such type of relief could be granted by the Commission as interim measure as has been specifically provided that Commission shall have power to pass interim order and according to the learned counsel for the respondent, that power includes passing of the order for fixing provisional tariff. If it is so, then the provisional order could have been passed even without insertion of sub-clause 4 under clause 5 of the Regulations and it has been alleged by one of the writ petitioners that, in fact DVC submitted one application for such interim relief and that was withdrawn by the DVC. Then in that situation issue requires consideration that once relief 11 sought by the DVC was withdrawn by the DVC, was there any justification for the Commission to grant interim tariff in old matter without any application by DVC? Admittedly, there is no order from any of the Courts staying final determination of tariff on the application of the DVC for the year 2009-14. The SAIL has already filed objection against fixing of the tariff against the application filed by the DVC, which is sought to be disputed by the DVC. But learned counsel for the Commission admitted that objections were filed by the writ-petitioner/SAIL against the DVC's application for fixing the tariff.
13. Admittedly SAIL has not been heard before passing the impugned order by the Commission. More important fact is that whether the statutory provision under Sub-clause (4) of Clause 5, the operation of which has not been stayed and which is under challenge in these petitions, this Court can pass the interim order staying the operation of the order dated 23rd June, 2011. The main relief in these petitions is for declaring the Regulation 5 (4) as illegal and ultra vires and this itself indicates that relief of staying the payment under the order dated 23rd June, 2011 is not the main relief in the present writ petitions. It is true that final relief cannot be granted in the form of interim relief, but that principle cannot be applied in each and every case. In writ of prohibition, which is maintainable as per Article 226 of the Constitution of India, petitioners can claim any relief of prohibition and in fact situation unless same relief as prayed in the writ petition is granted as interim relief, the writ petition will be of no use. In the case like only relief of restraining the respondents from demolition of his property is claimed then in that situation the 12 Court not only has power to grant same relief as claimed in main petition as interim relief and if that relief is not granted then it will be nothing but would be making the provision of writ of prohibition redundant the denial of relief to the writ petitioners and if stay is not granted during the pendency of writ petition in that situation, there cannot be any useful purpose of filing the writ of prohibition and that may make the writ petition infructuous though it was maintainable when it was filed and require for filing another writ petition or for seeking amendment for grant of mandatory injunction. The judgment which has been relied upon by the learned counsel for the respondent was delivered in the case of Ram Sukhi Devi(Supra), wherein it has been held by Hon'ble Supreme Court that in the garb of interim order, final relief cannot be granted. That was a case under a dependent sought employment under the provisions of employment on compassionate ground. The facts of that case clearly indicate that the interim relief could not have been granted and this cannot be equated with this case. Apart from above, we have already stated that the main relief in this case is to challenge the legality and validity of the statutory provision.
14. Now, there may arise another question whether in a case where the operation of the statutory provision has not been stayed, interim order staying the recovery or charging of any amount in pursuance of the order under that statutory provision can be stayed or not. In this situation also, it would be worthwhile to mention the judgment of Hon'ble Supreme Court relied upon by learned counsel for the respondent delivered in the case of Tulsi Ram Patel (Supra), wherein 13 the Hon'ble Supreme Court considered the principle of natural justice in detail and it has been held that the right of hearing can be denied by making statutory provision. Here in this case two issues are involved, whether because of the proviso made under Sub-clause 6 of Regulation 2004 the opportunity of hearing stand excluded for all, including the party already present before the Commission and filed the objection to the main petition and such proviso gives power to the authority to pass the order in any pending matter irrespective of the fact since when the matter was pending and irrespective of the fact whether this was appropriate stage where the interim order should have been granted; Whether oder should not indicate effect of withdrawal of earlier application for the same relief by the party itself, necessity of recording of reason for the order etc. So is also important because of the reason that as per Section 64 (3) of the Electricity Act, 2003 the application for final determination is required to be decided in 120 days. We are of the considered opinion that the period may not be mandatory as the final determination of the tariff involves decision on complex questions of facts but at the same time such provision indicates that the matter is required to be decided expeditiously by the Commission and in this case in the matter which was pending for more than 1½ years, all of a sudden an order was passed on an application without indicating as to at whose instance and why this order was passed by the Commission so as to fixing the liability upon the consumers. All these issues are required to be considered. So far as the reason given by the authorities for increasing the tariff is only 14 "after carrying out due prudence check, we allow the provisional annual fixed charges for the period 2009-14 in respect of the generation, transmission and other assets as stated overleaf." This is the only reason coming from the impugned order given by the Commission for passing interim order fixing the interim tariff. Learned counsel for the writ petitioners drew our attention to paragraph 8 of the impugned order wherein it has been indicated that the petitioners were directed to file separate petitions for each of its generating stations and transmission system in accordance with the Regulation 4 of the 2009 Regulations and with the help of this, it has been submitted that there was no petition properly filed before the Commission for the purpose of determining the tariff yet interim relief has been granted.
15. It is also relevant to mention here that the counsel for the respondent vehemently submitted with the help of the judgment referred to above that this is a public money and the Court should not grant interim order and may vacate the interim order. We are of the considered opinion that mere claiming of the money to be public money cannot make the money public money and this may deprive the public from their own money and merely claiming public money is not required to be taken as last word and gospel truth for the purpose of deciding the issue in case there is prima facie case against such claims. The public money becomes public money, when it is admitted case or where the Court after examining the matter prima facie comes to the conclusion that it is a public money. Even in the case of Silliguri Municipality and others (Supra) Hon'ble Supreme Court observed that stay of 15 recovery of tax should be granted only in exceptional cases after careful examination of the matter. Therefore, it is not the law that in the matter of claimed public money the Court is precluded from even examining whether the money claimed is public money or not. In this matter substantially a few questions which are required to be considered are that whether in the case where power is vested in authority to pass interim order, whether the said authority can pass the interim order without any application or upon oral application and whether the opportunity of hearing to the parties is required to be given or not, not to the party who has already submitted objection to main petition and whether it was incumbent upon the authorities to examine whether it is essential to pass interim order fixing liability upon the other authority in a case where the statutory requirement is, if not to extent as given in the statute itself to decide the main petition within 120 days then it means expeditious decision, even then the interim order is essential to be passed.
16. We are making it clear that all above questions which have been referred above only for the purpose of deciding by this Court in detail and have been referred because of the reason that lengthy arguments have been advanced even after Court's observing that Commission may explore the possibility to decide the tariff application finally within a period and when it was put to the learned counsel for the respondent that the Commission may be directed to decide the tariff finally within a reasonable time which may be suggested by the parties but learned counsel for the DVC prayed that only stay be vacated. We, in view of the reasons mentioned above, are 16 of the view, case is made out for continuation of stay.
17. It goes without saying that any observation made in the interim order is in form of interim observation of the Court and not the final expression of opinion of the Court on any point of question of fact or question of law and we are making it again clear that this order will not prejudice the case of any of the parties. In the matter where it is claimed public money is involved, this Court is required to pass detailed order so as to continue the interim order, therefore, we are passing some detailed order.
18. The prayer for vacating the interim order is rejected. However, looking to the totality of the facts of the case, the matter is required to be heard finally, for which, opportunity of hearing is required to be given to the counsel of the parties as they want to file reply with respect to certain legal issues as well as certain factual aspect to justify the impugned order.
19. Learned counsel for the respondent-Commission submitted that as the concerned officers will not be available, therefore, they may be granted some longer time to file reply and counter affidavit. Therefore, the respondents are directed to file counter affidavits by 12th September, 2011 and in case the petitioners want to file rejoinder to the counter affidavit or supplementary affidavit, they may file the same on or before 19th September, 2011.
20. List these cases on 20th September, 2011.
(Prakash Tatia, A.C J) (Jaya Roy, J) Dey/-Alankar/-