Gujarat High Court
South Gujarat Small Gas Consumers ... vs Petroleum And Natural Gas Regulatory ... on 17 June, 2019
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/19028/2018 IA JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 19028 of 2018
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 3 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 17174 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.Y. KOGJE Sd/-
=======================================================================
1 Whether Reporters of Local Papers may be allowed to see the No judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the No interpretation of the Constitution of India or any order made thereunder ?
======================================================================= GUJARAT STATE PETRONET LIMITED Versus TORRENT POWER LTD ======================================================================= Appearance: - CA NO. 1 of 2019 In SCA NO. 19028 of 2018 MR MIHIR JOSHI, SENIOR ADVOCATE assisted by MR ASPI M KAPADIA for the PETITIONER(s) No. MR MIHIR THAKORE, SENIOR ADVOCATE assisted by MR SALIL M THAKORE for the RESPONDENT(s) No.1 MR BOMI H SETHNA for the RESPONDENT(s) No. 2 ======================================================================= GAIL (INDIA) LIMITED Versus SOUTH GUJARAT SMALL GAS CONSUMERS ASSOCIATION ======================================================================= Appearance: - CA NO. 3 of 2019 In SCA NO. 17174 of 2018 MR KAMAL TRIVEDI, SENIOR ADVOCATE assisted by ASHIWARY GUPTA for GUPTA LAW ASSOCIATES for the PETITIONER(s) No. MR PREMAL R JOSHI for the RESPONDENT(s) No.1 MR BOMI H SETHNA for the RESPONDENT(s) No.2 MR MANISH BHATT, SENIOR ADVOCATE assisted by MR MUNJAL M.BHATT for M R BHATT & CO. for the RESPONDENT(s) No. 3 ======================================================================= CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE Date : 17/06/2019 Page 1 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT IA JUDGMENT
1. RULE. Learned Advocate Mr.Salil Thakore waives service of Rule on behalf of respondent No.1 and learned Advocate Mr.Bomi Sethna waives service of Rule on behalf of respondent No.2 in Civil Application No.1 of 2019 in Special Civil Application No.19028 of 2018 and learned Advocate Mr.Premal Joshi waives service of Rule on behalf of respondent No.1, learned Advocate Mr.Bomi Sethna waives service of Rule on behalf of respondent No.2 and learned Advocate Mr.Munjal Bhatt waives service of Rule on behalf of respondent No.3 in Civil Application No.3 of 2019 in Special Civil Application No.17174 of 2018
2. These applications are filed in their respective main writ petitions with a prayer to vacate the ad interim relief granted by orders dated 10.12.2018 and 20.11.2018 respectively. Both these applications are arising out of the same subject matter and the contentions raised are also identical. Hence, with the consent of all, both these applications are taken up for joint hearing. The parties will be addressed for the sake of convenience as per their status in the main petitions. The facts are taken from Civil Application No.1 of 2019 in Special Civil Application No.19028 of 2018.
3. The original petition is filed by respondent Page 2 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT No.1 in the present application with a prayer to quash and set aside tariff order dated 27.09.2018 and zonal tariff order dated 10.12.2018 passed by the Petroleum and Natural Gas Regulatory Board. While issuing notice, by way of ad interim relief, the impugned order dated 27.09.2018 was ordered to be stayed and the respondents were restrained from taking any coercive steps qua the petitioner.
4. The issue pertains to transportation charge of the gas being transported by the respondents after setting up necessary infrastructure by incurring expenditure for such infrastructure. The respondent No.2 being a public limited company was set up as provided by the PNGRB Act, 2006 and regulated by PNG Regulatory Board established under the PNGRB Act, 2006. The petitioner and other companies, who were engaged in the business of generation, transmission and distribution of electricity and /or using gas for manufacturing purpose in the respective manufacturing plants, are required to enter into Gas Transmission Agreement with the companies like the respondent for the purpose of transporting gas. The tariff for the purpose of transportation is regulated by PNG Regulatory Board. Various litigations took place inter se between the users of the gas for manufacturing purpose and the companies responsible for transportation Page 3 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT of such gas with regard to tariff. Ultimately, by tariff order dated 27.09.2018, the Board was pleased to specify tariff for transportation and that tariff order is the subject matter of challenge in the main petitions. The main contentions which form foundation for the writ petition are as under:-
"a) PNGRB has no power to fix transportation tariff except by way of Regulations to be laid before the Parliament and cannot do so by way of a "Tariff Order". The petitioner pointed out that by judgment and order dated 11.09.2014 passed by a Division Bench of the Hon'ble Delhi High Court in Writ Petition (Civil) No.3698 of 2013 (Gail India Vs. PNGRB), the Hon'ble Delhi High Court had observed at various places that the transportation tariff can be laid down by PNGRB only by Regulations and in no other form.
b) PNGRB must upload all submissions made by
GSPL for tariff determination so as to
enable stakeholders to effectively
particulate in the determination of tariff and to give a hearing."Page 4 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019
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5. This Court while issuing notice has referred to the judgment of the Delhi High Court and stayed the impugned tariff order.
6. Elaborate contentions raised by both the sides on the merits of the matter. However, upon a specific query for final hearing of the main matter, the applicants insisted for hearing of the Civil Applications to vacate ex parte ad interim relief. Therefore, this Court is to consider as to whether (I) a case is made out for grant of interim relief and (II) to vacate the ex parte ad interim relief granted under orders dated 10.12.2018 and 20.11.2018 respectively. The answer to the first question would automatically cover the other.
7. The main contention raised by the applicants is that the transportation charge of gas can be imposed only by framing regulations as per the PNGRB Act, 2006 and not under the tariff order. It is submitted that framing of the regulations would require specific procedure to be followed as provided under the Act and also would include laying down of the same before the House for its approval. By giving gobye to such procedure, simply by passing a tariff order by the Board, new transportation charge has been imposed. The other contention is with regard to following principle of natural justice as according to the applicants, while following the Page 5 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT procedure for passing tariff order, upon house participation was invited. However, the same was not effective as all the documents which were inputs of the stakeholders were not made available on the website, thereby not available to the applicants, which precluded them from making effective representation.
8. As against this, learned Advocates for the respondent companies submitted that fixing of the rate for transportation of gas using infrastructure established by the respondents companies is merely a commercial action which is required to be regulated by the Regulatory Board. The Act does not provide for any regulations to be framed for deciding transportation charge.
8.1 The petitioner companies are engaged in commercial activity of manufacturing for which they are using gas manufactured by the gas companies and transported by the respondent companies. The respondent companies have invested heavily in the infrastructure and are therefore, required to recover such cost and that too after such cost is being imposed through regulatory mechanism of the Board.
8.2 It is vehemently submitted that manufacturers like the petitioners while selling their products include Page 6 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT in their selling price the manufacturing cost of such product which also includes the cost for production which is an element of using fuel and its transportation. Therefore, cost of transportation is to be passed on to the consumers.
8.3 It is submitted that on account of ad interim relief granted, the petitioners are paying rate lower than fixed under the tariff order and therefore, component of transportation charge is not added to selling price of the end product and ultimately if rates under the tariff order are upheld, it would be impossible for the applicants to recover the differential amount from its consumers. On the other hand, if the petitioners are made to pay rates under the tariff order, the petitioners will be able to pass on to its consumers the component of transportation charge as well and ultimately, upon tariff order being set aside, the petitioners will be in a better position to recover differential amount from the respondents either by actual refunding and /or adjustment in the bills that may be raised for the on-going transportation of gas services provided by the respondents.
8.4 It is also submitted that as the order of stay on the tariff order is made applicable only to the petitioners, one of whom is the electricity manufacturing Page 7 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT company and other is an association of manufacturers, the benefit is restricted only to the petitioners and the members of the manufacturing association whereas for other consumers, the rates applicable are that as per the tariff orders. This is creating a situation where the respondent company is receiving two different charges for the same activity, which is not in larger interest of the market or the economy.
9. Learned Advocate for the respondent-Board has objected to grant of interim relief and continuing of the same on the ground of alternative remedy available under Section 33 of the PNGRB Act, 2006. It is submitted that earlier also, the for similar exercise by the Board on fixing of the provisional initial unit, was challenged by he petitioner and other manufacturers by way of an appeal. Therefore, the petitioners are aware of the alternative remedy and hence, in the present petition, interim relief cannot be granted.
10. Having heard learned Advocates for the parties and having perused documents on record, the facts in brief appear to be that the petitioner is engaged in the business of generation, transmission and distribution of electricity in Gujarat and other States. The petitioner has its SUGEN Combined Cycle Power Plant at Kamrej, Dist.
Surat, where the electricity is generated and the Page 8 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT
petitioner is supplying power to the cities of Ahmedabad and Surat and surplus to Madhya Pradesh. The fuel used for generation of electricity is natural gas. For the purpose of receiving natural gas as fuel, on 27.02.2006, the petitioner entered into Gas Transmission Agreement with the respondent company where the gas to be utilized by the petitioner as fuel was to be transported to the petitioner's electric generation plant through the gas grid developed and maintained by the respondent company. As per the agreement, the petitioner was required to pay transportation tariff to the respondent at different rates for supply of gas from different sources. The respondent company is an infrastructure company dedicated to development of gas infrastructure to be used as fuel which is a major contribution to the economic development as the industries can use such fuel which is comparatively cheaper and environment friendly. The development of gas infrastructure is highly capital incentive and requires huge investment and involves considerable risk as well. The respondent company has made huge capital investments in developing 2700 km long high pressure gas grid in the State of Gujarat, for which the respondent company has received financial assistance from the banks and financial institutions. The source of revenue as a return on the investment made is transportation charges which the respondent company would Page 9 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT receive from the manufacturers like the petitioners. The charges are to be regulated and determined as per the provisions of the Tariff Regulations and as per the regulations, a cap of earning of 12% return post tax return on capital employed was applied. From the submissions made, it appears that the respondent company has outstanding loan of approximately Rs.2576/- crores from various public sector banks and scheduled commercial banks and has obligation of interest on such loans to the tune of Rs.220/- crores in current financial year and repayment of principal amount of Rs.990/- crores. 10.1 The fixing of tariff has seen some litigation which may be briefly narrated as follows; On 27.07.2012, the respondent-Board granted authorization to GSPL for High Pressure Gujarat Gas Grid by authorization under regulation 18. On 11.09.2012, tariff order came to be passed by the respondent-Board fixing the provisional initial unit natural gas pipeline tariff on levelized basis at Rs.23.99 per Million British Thermal Units (MMBTU). Aggrieved by the tariff order of fixing provisional initial unit price, the petitioner filed an appeal being Appeal No.251 of 2012 before the Appellate Tribunal (APTEL). Similarly, other consumers also challenged the same order before the APTEL being Appeal No.222 of 2012. During the pendency of these appeals, Page 10 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT the Board passed a tariff order dated 19.02.2013 for zonal tariff apportionment of the provisional initial unit natural gas pipeline was fixed. This was also subject matter of challenge in a separate appeal. By judgment and order dated 06.01.2014, Appeal No.222 of 2012 filed by another consumer came to be allowed, wherein retrospective effect was the subject matter of consideration and the said judgment inter alia held that neither the Act not the Regulations empowered the Board to retrospectively apply the tariff order and that in the process of determining the transportation tariff, the entities which would utilize GSPL pipeline for transportation of natural gas as consumer of GSPL would be necessary parties to participate in such process. Upon remand, the Board passed another tariff order dated 11.07.2014 fixing the price at Rs.26,58 MMBTU. Again provisional tariff order was given retrospective effect from 27.07.2012.
10.2 Considering the petitioner to fall in Zone-1, a zonal tariff of Zone-1 was fixed at Rs.18.49/MMBTU under zonal tariff order dated 19.02.2013 whereas under the tariff order dated 11.07.2014, zonal tariff was fixed at Rs.24.21/MMBTU and accordingly, the respondent company raised invoice dated 08.08.2014 after adjusting differential amounts for Zone for the period commencing Page 11 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT from 27.07.2012 to 30.06.2014. This invoice was for an amount of Rs.49,98,00,397/-, of which the petitioner has made an ad hoc payment on account of Rs.5 crores to the respondent company and therefore, notice came to be issued by GSPL to the petitioner to make balance payment of Rs.44,98,00,397/-. The bank guarantee was also invoked. However, again on payment of further amount of Rs.2 crores, invocation of bank guarantee was withdrawn and therefore, total payment of Rs.7 crores has been made towards the invoice raised of Rs.49,98,00,397/-. The order dated 11.07.2014 as well as invoice and notice were subject matter of challenge in SCA No.14604 of 2014, which is admitted by this Court by order dated 14.10.2014 and tariff order dated 11.07.2014 is stayed conditionally.
10.3 In January 2017, the respondent-Board issued public consultation document for fixing final initial unit natural gas pipeline tariff for High Pressure Gujarat Gas Grid. The petitioner made submissions on such notice by its letter dated 31.01.2017 and in the meantime also requested for certain documents to be provided by the respondent-Board. Thereafter, by tariff order dated 27.09.2018, the respondent-Board fixed final levelised tariff at Rs.34 per MMBTU to be made applicable from 01.04.2018 onwards and also fixed tariff at Rs.26,58 Page 12 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT to apply retrospectively from 27.07.2012 to 31.03.2018. 10.4 By tariff order dated 10.12.2018, zonal tariff was also fixed where levelized tariff as per tariff order dated 27.09.2018 was determined zone-wise. The zone-wise tariff and the period of applicability is given in tabular form as under:-
For the period from 27.07.2012 For the period from 01.04.2018 to 31.03.2018 onwards (In Rupees per MMBTU) (In Rupees per MMBTU) Zone 1 Rs.24.21 Rs.33.15 Zone 2 Rs.28.90 Rs.34.84 Zone 3 Rs.29.84 Rs.34.86 Levelised Tariff as per Tariff Rs.26.58 rs.34.00 Order dated 27.09.2018 10.5 This is also subject matter of challenge in the petition by way of amendment.
10.6 In support of the contention of the petitioner on the ground of fixing of tariff under the tariff order or by way of regulation, elaborate arguments were advanced including extensive reliance on the judgment of the Delhi High Court in the case of Gail (India) Limited Vs. Petroleum and Natural Gas Regulatory Board & Ors., in Writ Petition (C) No.3698 of 2013 dated 11.09.2014. The same is subject matter in SCA No.14604 of 2014 also and therefore, for the purpose of the present applications, the Court does not deem it fit to dwell upon this Page 13 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT contention as the same will have to be considered at the time of final hearing of the main petition.
10.7 Insofar as second contention of non-compliance of principles of natural justice, from the record, it is apparent that the petitioners have actually participated in the consultation procedure. Pursuant to the judgment of APTEL, there was amendment of 27.02.2014, whereby Regulation 4 of the Tariff Regulations was amended to specifically provide for and incorporate a public consultation procedure prior to determination of tariff and accordingly, public consultation document was web-
hosted on the website of the respondent-Board, wherein it was open for all the stakeholders to submit their comments and were also provided for an opportunity to respond. Accordingly, submissions were made on 31.01.2017 and 19.08.2017 by the petitioner. An open house was conducted which included discussion with the relevant stakeholders on 16.08.2017 and the petitioners had also participated and made submissions. The consultation procedure from its interim level of participation appears to be highly technical and based on views of the experts and when participation is so broad based, it is difficult to comprehend that any issue would be left unattended. Even if at the stage of interim relief, it is considered that some documents were missed Page 14 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT in the web-hosted documents by the Board, which may have precluded the petitioners from making their submissions in the open house or in public consultation proceeding, the Court is not convinced to hold this very ground enough to bring to a halt by way of interim relief effect of exercise undertaken, which is undertaken after highly technical discussion and inputs from the experts of the subject.
10.8 Perusal of the impugned tariff order itself is sufficient to prima facie substantiate elaborate exercise undertaken by the participants, which were not only the petitioners but all other stakeholders, which includes entities lime GAIL, Adani, RGTIL, etc. and therefore, the Court is not inclined at prima facie stage to stay operation of the tariff order.
10.9 The Court has also taken into consideration the fact that the Act itself provides for an alternative remedy by way of an appeal under Section 33. The statutory appeal appears to have been time barred during which the impugned tariff order has continued to operate. However, provision is there for condonation of delay as well.
10.10 In the judgment of the Apex Court in case of Assistant Collector of Central Excise, Chandan Nagar, Page 15 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT
West Bengal Vs. Dunlop India Ltd. & Ors., reported in (1985) 1 SCC, 260, the Apex Court has held as under:-
"We have come across cases where the collection of public revenue has been seriously jeopardised and budgets of Governments and Local Authorities affirmatively prejudiced to the point of precariousness consequent upon interim orders made by courts. In fact instances have come to our knowledge where Governments have been forced to explore further sources for raising revenue, sources which they would rather well leave alone in the public interest, because of the stays granted by courts. We have come across cases where an entire Service is left in a stay of flutter and unrest because of interim orders passed by courts, leaving the work they are supposed to do in a state of suspended animation. We have come across cases where buses and lorries are being run under orders of court though they were either denied permits or their permits had been canceled or suspended by Transport Authorities. We have come across cases where liquor shops are being run under interim orders of court. We have come across cases where the collection of monthly rentals payable by Excise Contractors has been stayed with the result that at the and of the year the contractor has paid nothing but made his profits from the shop and walked out. We have come across cases where dealers in food grains and essential commodities have been allowed to take back the stocks seized from them as if to permit them to Page 16 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT continue to indulge in the very practices which were to be prevented by the seizure. We have come across cases where land reform and important welfare legislations have been stayed by courts. Incalculable harm has been done by such interim orders. All this is not to say that interim orders may never be 198 made against public authorities. There are, of course, cases which demand that interim orders should be made in the interests of justice.
Where gross violations of the law and injustices are perpetrated or are about to be perpetrated, it is the bounden duty of the court to intervene and give appropriate interim relief. In cases where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen's faith in the impartiality of public administration, a Court may well be justified in granting interim relief against public authority. But since the law presumes that public authorities function properly and bonafide with due regard to the public interest, a court must be circumspect in granting interim orders of far reaching dimensions or orders causing administrative, burdensome inconvenience or orders preventing collection of public revenue for no better reason than that the parties have come to the Court alleging prejudice, inconvenience or harm and that a prima facie case has been shown. There can be and there are no hard and fast rules. But prudence, discretion and circumspection are called for. There are several other vital considerations apart from Page 17 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT the existence of a prima facia case. There is the question of balance of convenience. There is the question of irreparable injury. There is the question of the public interest There are many such factors worthy of consideration. We often wonder why in the case indirect taxation where the burden has already been passed on to the consumer, any interim relief should at all be given to the manufacturer, dealer and the like."
10.11 In the case of Empire Industries Limited & Ors. Vs. Union of India & Ors., reported in (1985) 3 SCC, 314, in para-60, the Apex Court has held as under:-
"60. If we may venture to suggest, in fiscal matters specially in cases involving indirect taxes where normally taxes have been realised from the consumers but have not been paid over to the exchequer or where taxes are to be realised from consumers by the dealers or others who are parties before the court, interim orders staying the payment of such taxes until final disposal of the matters should not be passed. It is a matter of balance of public convenience. Large amounts of taxes are involved in these types of litigations. Final disposal of matters unfortunately in the present state of affairs in our 330 courts takes enormously long time and non-realisation of taxes for long time creates an upsetting effect on industry and economic life causing great inconvenience to ordinary people.
Governments are run on public funds and if
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large amounts all over the country are held up during the pendency of litigations, it becomes difficult for the governments to run and become oppressive to the people. Governments' expenditures cannot be made on bank guarantees or securities. In that view of the matter as we said before, if we may venture to suggest for consideration by our learned brothren that this Court should refrain from passing any interim orders staying the realisations of indirect taxes or passing such orders which have the effect of non-realisation of indirect taxes. This will be healthy for the country and for the courts."
10.12 The Court certainly finds considerable weight in the submission made on behalf of the respondent Gas companies that the price of transportation of gas finds a minimal component of the sale price of the product manufactured by the petitioner companies. Moreover, such minimal component will always be a part of the sale price of the end product and therefore, the tariff fixed under the impugned tariff order is permitted to be recovered will always be passed on to the consumers. On the other hand, the only source of revenue generated for the respondent company is this tariff and as provided under the provisions of the Act, the tariff is not imposed at the whims of the respondent company, but after undergoing an elaborate procedure, the tariff is arrived at. This revenue generation for the respondent companies cannot be Page 19 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT curtailed at an interim stage.
10.13 It is further observed that the balance of convenience in the opinion of this Court is in favour of the respondent companies as even if the transportation charge is applied as per the tariff fixed under the impugned tariff order and if ultimately, the petitioner is to succeed, considering the nature of continuity of business, the differential amount so received by the respondent company would be subject to adjustment in the accounts whereas not permitting the transportation charge as per the tariff fixed under the impugned tariff orders, it will not be open for the petitioner to pass on the charges to its consumers and in the event of not succeeding in the petition finally, will leave the petitioner also in a situation which is not desirable and certainly cannot be created under the order of Court. The Court is also inclined to take this stand in view of the assurance given by the respondent companies to refund the amount if the petitioner is to finally succeed. In para-109, the respondent company has stated on affidavit as under:-
"109.It is respectfully submitted that the tariff order dated 27.09.2018 and 10.12.2018 should be allowed to be implemented subject to the final adjudication of the Special Civil Application. GSPL undertakes to refund the Page 20 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT amount, if any, to the petitioner if the court finds merit in the issues raised by the original petitioner and the Impugned Tariff Order is finally set aside. Not staying the Tariff Order dated 27.09.2018 would not create any irreversible situation. Monetary adjustments can be made based on final determination of the Special Civil Application by this Hon'ble Court."
10.14 The Court observes that even at the stage of fixing of provisional initial unit industrial gas pipeline tariff, the issue was litigated at several stages and is still pending before this Court and now when the impugned tariff order decides upon the final initial unit price, another kind of litigation is involved. In this fact situation, the Court does not deem it desirable to create a situation which would act in detriment to other consumers of the respondent company and an undue advantage to the petitioner company and that too at interim stage. It is pertinent to observe that by granting interim relief to the petitioner and restricting the same to be petitioner only, has created a situation where for the same service rendered, the petitioners are paying at lesser rate whereas other consumers are paying at higher rate. This situation can also not be created under an order of the Court.
11. In view of the aforesaid discussion, the Page 21 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019 C/SCA/19028/2018 IA JUDGMENT petitioners have not made out prima facie case or the case for interim relief on the basis of balance of convenience or irreparable loss which cannot be compensated in terms of money and hence, petitioners not entitled to interim relief as prayed for. Non-granting of interim relief would make the tariff order applicable in its full perspective. However, considering the fact that applying the tariff orders retrospectively is subject matter for final decision not only in this petition but also in the previous petition admitted and pending for final hearing, it would be proper to direct that from the date of this order, the petitioner shall pay charges in accordance with the impugned tariff order dated 27.09.2018 in TO/05/2018 and and zonal tariff order dated 10.12.2018 in TO/09/2018. However, till final disposal of the petition the respondents are restrained from taking any coercive steps for recovering the charges retrospectively. The order dated 27.09.2018 stands modified to the aforesaid extent. The Civil Applications stand allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
Direct service is permitted.
Sd/-
(A.Y. KOGJE, J) SHITOLE Page 22 of 22 Downloaded on : Sun Jun 30 20:43:04 IST 2019