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2006 DIGILAW 251 (CAL)

CESC LTD. v. SURESH AGARWAL

2006-04-24

SOUMITRA SEN, V.S.SIRPURKAR

body2006
V. S. SIRPURKAR, C. J. ( 1 ) THERE shall be an order in terms of prayer (a) of the application. ( 2 ) THIS appeal has been filed against the interim order of the learned single Judge whereby, while dealing with the writ petition filed by one Sri suresh Agarwal, the learned judge has passed an injunction in the following terms :"the Commission is as such restrained from publishing any tariff for the year 2006-07 for the time being for a period of 8 weeks. " ( 3 ) IN the aforementioned writ petition, the writ petitioner had challenged the communication sent to him dated 28th December, 2005 by the West bengal Electricity Regulatory Commission (hereinafter referred to as 'the commission' for short) whereby it was communicated to the writ petitioner that no hearing would be given either to the public or to the licensee while issuing the tariff order under section 64 (3) (a) of the Electricity Act, 2003. The writ petitioner had filed that writ petition in his individual capacity and had described himself as a consumer under CESC Limited, the appellant herein. In the first paragraph of the writ petition he has described that he was the consumer enjoying the electric supply of 240 Volt Medium Tension (Domestic ). He had also described himself as the honorary General Secretary of the West Bengal Rolling Mill Association. We must hasten to add here that the said West Bengal Rolling Mill Association was not made a party to the writ petition. The writ petitioner complained that in pursuance of the advertisement which had appeared on 27th December, 2005 inviting objections/suggestions on the tariff petition filed by the appellant CESC limited, he had filed his objections to the application made by CESC Limited as per the provisions of that Act. ( 4 ) THE CESC Limited, which is a licensee, has to file the application every year for determination of tariff under section 62 of the Act. The writ petitioner also pointed out that he by his letter dated 28th December, 2005 had sought personal hearing in the matter of his objections. It seems that this letter was replied to by the Commission only by its letter dated 28th february, 2006 declining to grant any personal hearing. The writ petitioner also pointed out that he by his letter dated 28th December, 2005 had sought personal hearing in the matter of his objections. It seems that this letter was replied to by the Commission only by its letter dated 28th february, 2006 declining to grant any personal hearing. It is on this basis that the petitioner filed his writ petition on 24th March, 2006, inter alia, claimin therein that the stance taken by the Commission of depriving him of an opportunity to be heard was wholly incorrect and therefore he sought a Writ of Mandamus firstly, for recalling of the order dated 28th February, 2006 and directing the Commission not to take any step in pursuance of that letter. There are other prayers made including the prayer vide prayer b (ii), that is, not to pass any tariff order on the tariff application of CESC limited for the year 2006-07 without hearing the petitioner. ( 5 ) AS has already been stated above, the learned Single Judge of this court has issued a Rule over this writ petition and has restrained the commission from passing any order. It is this interim order which is appealed against before us. ( 6 ) THE learned Senior Counsel appearing on behalf of the CESC Limited pointed out before us that the interim order passed was of such a sweeping nature that it would put the whole exercise on the part of the Commission in a state of jeopardy. The learned Counsel points out firstly that under the scheme of the Act, it was not imperative on the part of the Commission to grant hearing to an individual objector, like the writ petitioner. The learned counsel further printed out that the earlier judgment passed by the Supreme court in the case of West Bengal Electricity Regulatory Commission vs. CESC Ltd. reported in 2002 (8) SCC 715 , could not be held an authority in support of the proposition that every objector must be heard or must be given a personal hearing in view of the changes in the law. The learned counsel urged that that judgment was given on the basis of the provisions as also the Regulations passed under the Electricity Regulatory Commission act, 1998 and now that Act stands repealed with the advent of Electricity act, 2003 (hereinafter called 'the Act') wherein there is a sea change in the provisions. The learned counsel urged that that judgment was given on the basis of the provisions as also the Regulations passed under the Electricity Regulatory Commission act, 1998 and now that Act stands repealed with the advent of Electricity act, 2003 (hereinafter called 'the Act') wherein there is a sea change in the provisions. This argument was supplemented and supported by the learned senior Counsel for the West Bengal Electricity Board and DPL, who also sought to intervene in the matter as the interim order passed by the earned single Judge was affecting even the State Electricity Board. One other representative Association also sought to intervene in the matter on behalf of the consumer of electricity, so also the Dishergarh Power Supply corporation and West Bengal Power Development Corporation, who are also the licensees. ( 7 ) THE appellant complained that this blanket injunction has brought to a grinding halt the whole process of the determination of tariff by the commission which has its prime duty under the Act. It was pointed out further that even if the petition was admitted for final hearing, the learned judge should have desisted himself from passing such a sweeping injunction which would affect the determination of tariff in case of as many as five licensees in the whole State of West Bengal, they being i) CESC Limited ii)West Bengal State Electricity Board, iii) Durgapur Projects Limited, iv) Dishergarh Power Supply Corporation and v) West Bengal Power development Corporation. It is pointed out by the learned Counsel that the tariff fixed by the Commission every year has differed from the earlier tariff and the difference in the tariff would be most crucial for all the licensees in the sense that if the tariff goes down then the licensees have a liability to return the excess electricity charges recovered from the consumers whereas if the tariff goes up, they have to start the recovery process from all the consumers of the State whose numbers are easily over a crore. Sri Pal, who is representing the CESC Ltd. , particularly drew our attention to the fact that CESC Ltd. alone has 19 lakhs consumers in the city of Kolkata. Sri Pal, who is representing the CESC Ltd. , particularly drew our attention to the fact that CESC Ltd. alone has 19 lakhs consumers in the city of Kolkata. It is pointed out that unless the tariff is decided one way or the other, the licensees could recover the electricity charges only at the old tariff rate and, therefore, any change in the tariff would be very crucial for all the licensees. ( 8 ) IN the light of this, when we look at the order it is apparent that the learned Single Judge has passed a blanket injunction thereby freezing the determination of tariff process in case of all the five licensees in the State of west Bengal. The learned Counsel further pointed out that at the instance of an individual consumer who has not filed this writ petition in a representative capacity, such injunction could not have been sought for. This argument is supported even by Sri Dhar, learned Counsel for the commission, who has pointed out that in preparation of the order determining the tariff, tremendous efforts have to be made and that, too, within the statutory period of 120 days and the Commission itself would suffer prejudice if this order is not allowed to be passed. ( 9 ) AS against this, Sri Agarwal argues that hearing was an inherent right in view of the principles of fairness and natural justice. Sri Agarwal very vociferously argues that after all the tariff rate was directly connected with the consumers and, therefore, it could not be that the consumers themselves would be denied the right to be heard while determining the tariff. Sri Agarwal drew our attention to the various provisions of the Act, namely, sections 61 (b), 64, 84 (3), 94 (3), and 111 and pointed out that the right of hearing was a basic part of the scheme while determining the tariff and in the absence of such a hearing having been given, the whole order would be a non est as it would suffer from the abuse of basic principles of fairness and natural justice. ( 10 ) WE will not go into the merits of the matter at this stage because it would be for the learned Judge to deal with the merits of the case who has admitted the petition. ( 10 ) WE will not go into the merits of the matter at this stage because it would be for the learned Judge to deal with the merits of the case who has admitted the petition. There are number of basic issues which could be raised before the learned Judge in respect of the necessity of providing the hearing to the consumer like Sri Agarwal. We therefore, desist from expressing anything in this appeal at this stage. However, the question that will have to be considered would be as regards the balance of convenience. It is trite law that while passing an order of injunction the Court has to weigh all the situations, consider all the factors and has to decide as to whether there is a balance of convenience in favour of the party seeking such an injunction. This becomes all the more pronounced where an injunction order is likely to affect the major portion of the society. There can be no dispute that in this case the injunction is likely to affect all the consumers indirectly, if not directly, which consumers also include the innumerable industries. Therefore the question that can be asked is as to whether at the instance of an individual who has been refused the hearing by the Commission, could the whole process be brought to a grinding halt ? in our opinion, such would not be a position either in law or by way of balance of convenience. It is true that Sri Agarwal has not only raised his objections but has at the earliest point of time sought for personal hearing. It is also true that the Commission took unduly long time in responding to that request. Again, we do not understand the further time taken by Sri agarwal of almost two weeks in filing the writ petition. But that by itself would not be a deciding factor. In our opinion, the deciding factor would be the liabilities which may come in favour of or against the licensees in respect of the electricity charges either to be recovered from the consumers or to be returned to the consumers. There is no such prejudice going to be caused to the respondent if the tariff order is allowed to be passed. There is no such prejudice going to be caused to the respondent if the tariff order is allowed to be passed. His is an individual case as compared to the five licensees and over a crores of citizens who would be affected by the delay in passing the tariff order. ( 11 ) ON this background, we may also note that there is a provision of an appeal against the order passed by the Commission vide section 111 (2 ). When we see the provision of that it is clear that the parties therein have a right of hearing under the appeal. We hasten to add that we are not equating the hearing into appeal with the hearing under section 64 as claimed by the petitioner. However, that provision cannot be ruled aside altogether while considering the balance of convenience. ( 12 ) IN our opinion, therefore, it would not be proper to grant a blanket injunction freezing the whole process of the determination of tariff by the commission as number of complications are likely to arise therefrom. In that view, we would vacate that injunction and request the learned Judge instead to decide the writ petition on its merits as early as possible within the time-frame suggested by the learned Judge himself in the impugned order. ( 13 ) IN the result, the prayer for vacating the injunction is allowed. The injunction stands vacated. The Commission shall now proceed to pass the order. However, that would be subject to the result of the writ petition. ( 14 ) THE learned Counsel seeks further time to file the affidavit-in-opposition in the main writ petition. Such affidavit-in-opposition is to be filed within three weeks from date. Reply thereto, if any, two weeks thereafter. In view of the fact that we have requested the learned Judge to deal with the controversy in the pending writ petition, we do not feel it necessary to go ahead with this appeal on merits. ( 15 ) THE appeal upon treating the same as on the day's list is disposed of along with the stay application. All undertakings are discharged. There shall be no order as to costs. Appeal and application disposed of.