JUDGMENT 1. These writ applications are filed by the petitioner companies for declaration of clause (4) of Regulation 5 of the Central Electricity Regulatory Commission (terms and conditions of tariff) Regulations, 2009 and proviso to Clause (6) of Regulation 3 of the Central Regulatory Commission (procedure of making of application for determination of tariff, publication of the application and other related matters) Regulations, 2004, ultra vires the constitution of India and the Electricity Act, 2003. Provisional tariff order dated June 23, 2011 passed in the matter of Damodar Valley Corporation Vs. West Bengal State Electricity Distribution Company Ltd., Kolkata and Ors. in petition no.240 of 2009 for the period from 2009 to 2014 and differential power bills raised by the respondent no.3 for the period from May 2010, to May 2011 for enjoying the benefit of the impugned provisional tariff order are also under challenge in these writ applications. 2. Considering that the same points of law depending on identical facts and circumstances are involved in all these matters, these writ applications are taken up for analogous hearing. 3. The backdrop of these cases are as follows: Respondent no.3 was established on July 7, 1948 under the Damodar Valley Corporation Act, 1948. Section 18 of Damodar Valley Corporation Act, 1948 prohibited the respondent no.3 from supplying electrical energy below 33000 volts and it had no retail supply. Section 20 of the aforesaid Act empowered the respondent no.3 to determine its own tariff. 4. The Electricity Act, 2003 (hereinafter referred to as the said Act, 2003) came into force with effect from June 10, 2003. The preamble of the said Act, 2003, is quoted below: “An Act to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry, promoting competition therein, protecting interest of consumers and supply of electricity to all areas, rationalisation of electricity tariff, ensuring transparent policies regarding subsidies, promotion of efficient and environmentally benign policies, constitution of Central Electricity Authority, Regulatory Commissions and establishment of Appellate Tribunal and formatters connected therewith or incidental thereto.” 5. Sections 61, 62, 63, 64, 79, 94, 111 and 178 of the said Act, 2003 provides for tariff regulations, determination of tariff, determination of tariff by bidding process, procedure for tariff order, functions of the Central Commission, and powers of the Central Commission to make regulations respectively. Sections 61, 62, 63, 64, 79, 94, 111 and 178 of the said Act, 2003 provides for tariff regulations, determination of tariff, determination of tariff by bidding process, procedure for tariff order, functions of the Central Commission, and powers of the Central Commission to make regulations respectively. The aforesaid provisions are quoted below: “61. Tariff regulations.–– The Appropriate Commission shall, subject to the provisions of this Act, specify the terms and conditions for the determination of tariff, and in doing so, shall be guided by the following, namely:– (a) the principles and methodologies specified by the Central Commission for determination of the tariff applicable to generating companies and transmission licensees; (b) the generation, transmission, distribution and supply of electricity are conduced on commercial principles; (c) the factors which would encourage competition, efficiency, economical use of the resources, good performance and optimum investments; (d) safeguarding of consumers’ interest and at the same time, recovery of the cost of electricity in a reasonable manner; (e) the principles rewarding efficiency in performance; (f) multi-year tariff principles; (g) that the tariff progressively reflects the cost of supply of electricity and also reduces cross-subsidies in the manner specified by the Appropriate Commission; (h) the promotion of co-generation and generation of electricity from renewable sources of energy; (i) the National Electricity Policy and tariff policy : Provided that the terms and conditions for determination of tariff under the Electricity (Supply) Act, 1948 (54 of 1948), the Electricity Regulatory Commissions Act, 1998 (14 of 1998) and the enactments specified in the Schedule as they stood immediately before the appointed date, shall continue to apply for a period of one year or until the terms and conditions for tariff are specified under this section, whichever is earlier. 62. 62. Determination of tariff.–– (1) The Appropriate Commission shall determine the tariff in accordance with the provisions of this Act for- (a) supply of electricity by a generating company to a distribution licensee: Provided that the Appropriate Commission may, in case of shortage of supply of electricity, fix the minimum and maximum ceiling of tariff for sale or purchase of electricity in pursuance of an agreement, entered into between a generating company and a licensee or between licensees, for a period not exceeding one year to ensure reasonable prices of electricity; (b) transmission of electricity; (c) wheeling of electricity; (d) retail sale of electricity; Provided that in case of distribution of electricity in the same area by two or more distribution licensees, the Appropriate Commission may, for promoting competition among distribution licensees, fix only maximum ceiling of tariff for retail sale of electricity. (2) The Appropriate Commission may require a licensee or a generating company to furnish separate details, as may be specified in respect of generation, transmission and distribution for determination of tariff. (3) The Appropriate Commission shall not, while determining the tariff under this Act, show undue preference to any consumer of electricity but may differentiate according to the consumer’s load factor, power factor, voltage, total consumption of electricity during any specified period or the time at which the supply is required or the geographical position of any area, the nature of supply and the purpose for which the supply is required. (4) No tariff or part of any tariff may ordinarily be amended, more frequently than once in any financial year, except in respect of any changes expressly permitted under the terms of any fuel surcharge formula as may be specified. (5) The Commission may require a licensee or a generating company to comply with such procedure as may be specified for calculating the expected revenues from the tariff and charges which he or it is permitted to recover. (6) If any licensee or a generating company recovers a price or charge exceeding the tariff determined under this section, the excess amount shall be recoverable by the person who has paid such price or charge along with interest equivalent to the bank rate without prejudice to any other liability incurred by the licensee. 63. (6) If any licensee or a generating company recovers a price or charge exceeding the tariff determined under this section, the excess amount shall be recoverable by the person who has paid such price or charge along with interest equivalent to the bank rate without prejudice to any other liability incurred by the licensee. 63. Determination of tariff by bidding process.–– Notwithstanding anything contained in section 62, the Appropriate Commission shall adopt the tariff if such tariff has been determined through transparent process of bidding in accordance with the guidelines issued by the Central Government. 64. Procedure for tariff order.–– (1) An application for determination of tariff under section 62 shall be made by a generating company or licensee in such manner and accompanied by such fee, as may be determined by regulations. (2) Every applicant shall publish the application, in such abridged from and manner, as may be specified by the Appropriate Commission. (3) The Appropriate Commission shall, within one hundred and twenty days from receipt of an application under sub-section (1) and after considering all suggestions and objections received from the public,- (a) issue tariff order accepting the application with such modifications or such conditions as may be specified in that order; (b) reject the application for reasons to be recorded in writing if such application is not in accordance with the provisions of this Act and the rules and regulations made thereunder or the provisions of any other law for the time being in force : Provided that an applicant shall be given a reasonable opportunity of being heard before rejecting his application. (4) The Appropriate Commission shall, within seven days of making the order, send a copy of the order to the Appropriate Government, the Authority, and the concerned licensees and to the person concerned. (5) Notwithstanding anything contained in Part X, the tariff for any inter-State supply, transmission or wheeling of electricity, as the case maybe, involving the territories of two States may, upon application made to it by the parties intending to undertake such supply, transmission or wheeling, be determined under this section by the State Commission having jurisdiction in respect of the licensee who intends to distribute electricity and made payment therefore. (6) A tariff order shall, unless amended or revoked, continue to be in force for such period as may be specified in the tariff order. 79. (6) A tariff order shall, unless amended or revoked, continue to be in force for such period as may be specified in the tariff order. 79. Functions of Central Commission.–– (1) The Central Commission shall discharge the following functions, namely:- (a) to regulate the tariff of generating companies owned or controlled by the Central Government; (b) to regulate the tariff of generating companies other than those owned or controlled by the Central Government specified in clause (a), if such generating companies enter into or otherwise have a composite scheme for generation an sale of electricity in more than one State; (c) to regulate the inter-State transmission of electricity; (d) to determine tariff for inter-State transmission of electricity; (e) to issue licenses to persons to function as transmission licensee and electricity trader with respect to their inter-State operations; (f) to adjudicate upon disputes involving generating companies or transmission licensee in regard to matters connected with clauses (a) to (d) above and to refer any dispute for arbitration; (g) to levy fees for the purpose of this Act; (h) to specify Grid Code having regard to Grid Standards; (i) to specify and enforce the standards with respect to quality, continuity and reliability of service by licensees; (j) to fix the trading margin in the inter-State trading of electricity, if considered, necessary. (k) To discharge such other functions as may be assigned under this Act. (2) The Central Commission shall advice the Central Government on all or any of the following matters, namely;- (i) formulation of National Electricity Policy and tariff policy; (ii) promotion of competition, efficiency and economy in activities of the electricity industry; (iii) promotion of investment in electricity industry; (iv) and other matter referred to the Central Commission by that Government. (3) The Central Commission shall ensure transparency while exercising its powers and discharging its functions. (4) In discharge of its functions, the Central Commission shall be guided by the National Electricity Policy, National Electricity Plan and Tariff Policy published under section 3. 94. (3) The Central Commission shall ensure transparency while exercising its powers and discharging its functions. (4) In discharge of its functions, the Central Commission shall be guided by the National Electricity Policy, National Electricity Plan and Tariff Policy published under section 3. 94. Powers of Appropriate Commission.––(1) The Appropriate Commission shall, for the purposes of any inquiry or proceedings under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely:–– (a) summoning and enforcing the attendance of any person and examining him on oath; (b) discovery and production of any document or other material object producible as evidence; (c) receiving evidence on affidavits; (d) requisitioning of any public record; (e) issuing commission for the examination of witnesses; (f) reviewing its decisions, directions and orders; (g) any other matter which may be prescribed. (2) The Appropriate Commission shall have the powers to pass such interim order in any proceeding, hearing or matter before the Appropriate Commission, as that Commission may consider appropriate. (3) The Appropriate Commission may authorise any person, as it deems fit, to represent the interest of the consumers in the proceedings before it. 111. Appeal to Appellate Tribunal:–– (1) Any person aggrieved by an order made by an adjudicating officer under this Act (except under section127) or an order made by the Appropriate Commission under this Act may prefer an appeal to the Appellate Tribunal for Electricity : Provided that any person appealing against the order of the adjudicating officer levying any penalty shall, while filing the appeal, deposit the amount of such penalty : Provided further that wherein any particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, it may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the realisation of penalty. (2) Every appeal under sub-section (1) shall be filed within a period of forth five days from the date on which a copy of the order made by the adjudicating officer or the Appropriate Commission is received by the aggrieved person and it shall be in such form, verified in such manner and be accompanied by such fee as may be prescribed : Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forth-five days if it is satisfied that there was sufficient cause for not filing it within that period. (3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. (4) The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned adjudicating officer or the Appropriate Commission, as the case may be. (5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeabour shall be made by it to dispose of the appeal finally within one hundred and eighty days from the date of receipt of the appeal : Provided that where any appeal could not be disposed of within the said period of one hundred and eighty days, the Appellate Tribunal shall record its reasons in writing for not disposing of the appeal within the said period. (6) The Appellate Tribunal may, for the purpose of examining the legality, propriety or correctness of any order made by the adjudicating officer or the Appropriate Commission under this Act, as the case may be, in relating to any proceeding, on its own motion or otherwise, call for the records of such proceedings and made such order in the case as it thinks fit. 178. Powers of Central Commission to make regulations.–– (1) The Central Commission may, by notification make regulations consistent with this Act and the rules generally to carry out the provisions of this Act. 178. Powers of Central Commission to make regulations.–– (1) The Central Commission may, by notification make regulations consistent with this Act and the rules generally to carry out the provisions of this Act. (2) In particular and without prejudice to the generality of the power contained in sub-section (1), such regulations may provide for all or any of following matters, namely;- (a) period to be specified under the first proviso to section 14; (b) the form and the manner of the application under sub-section (1)of section 15; (c) the manner and particulars of notice under sub-section (2) of section 15; (d) the conditions of licence under section 16; (e) the manner and particulars of notice under clause (a) of subsection (2) of section 18; (f) publication of alternations or amendments to be made in the licence under clause (c) of sub-section (2) of section 18; (g) Grid Code under sub-section (2) of section 28; (h) levy and collection of fees and charge from generating companies or transmission utilities or licensees under sub-section (4) of section 28; (i) rates, charges and terms and conditions in respect of intervening transmission facilities under proviso to section 36; (j) payment of the transmission charges and a surcharge under sub-clause (ii) of clause (d) of sub-section (2) of section 38; (k) reduction of surcharge and cross subsidies under second proviso to sub-clause (ii) of clause (d) of sub-section (2) of section 38; (l) payment of transmission charges and a surcharge under sub-clause (ii) of clause (c) of section 40; (m) reduction of surcharge and cross subsidies under the second proviso to sub-clause (ii) of clause (c) of section 40; (n) proportion of revenues from other business to be utilised for reducing the transmission and wheeling charges under proviso to section 41; (o) duties of electricity trader under sub-section (2) of section 52; (p) standards of performance of a licensee or class of licensees under sub-section (1) of section 57; (q) the period within which information to be furnished by the licensee under sub-section (1) of section 59; (r) the manner for reduction of cross-subsidies under clause (g) of section 61; (s) the terms and conditions for the determination of tariff under section 61; (t) details to be furnished by licensee or generating company under sub-section (2) of section 62; (u) the procedures for calculating the expected revenue from tariff and charges under sub-section (5) of section 62; (v) the manner of making an application before the Central Commission and the fee payable therefore under sub-section (1) of section 64; (w) the manner of publication of application under sub-section (2) of section 64; (x) issue of tariff order with modifications or conditions under subsection 64: (y) the manner by which development of market in power including trading specified under section 66; (z) the powers and duties of the Secretary of the Central Commission under sub-section (1) of section 91; (za) the terms and conditions of service of the Secretary, officers and other employees of Central Commission under sub-section (3) of section 91; (zb) the rules of procedure for transaction of business under subsection (1) of section 92; (zc) minimum information to be maintained by a licensee or the generating company and the manner of such information to be maintained under sub-section (8) of section 128; (ze) any other matter which is to be, or may be specified by regulations. (3) All regulations made by the Central Commission under this Act shall be subject to the conditions of previous publication.” 6. In accordance with the provisions of proviso to Section 14 of the said Act, 2003, respondent no.3 became a deemed licensee. As a consequential effect of the provisions of Section 14 of the said Act, 2003, the provisions of Section 20 of the Damodar Valley Corporation Act, 1948 was virtually repealed. In accordance with the provisions of Section 79 of the said Act, 2003, only the respondent no.2 had the jurisdiction to regulate the tariff of the respondent no.3 enabling it to raise power bills in respect of supply of electrical energy to its consumers. 7. In exercise of powers conferred by Section 178 of the said Act, 2003 the respondent no.2, framed Central Electricity Regulatory Commission (terms and conditions of tariff) Regulation, 2004 (hereinafter referred to as the Tariff Regulations, 2004) which came into force from March 29, 2004. It was valid for a period of five years from 2004-09. 8. Thereafter, in exercise of powers conferred by Section 178 of the said Act, 2003, the respondent no.2 framed another regulation, namely Central Electricity Regulatory Commission (procedure for making an application for determination of tariff, publication of the application and other related matters) Regulations, 2004 (hereinafter referred to as the said Procedure Regulations, 2004) by virtue of the notification no.2-7/25(7) 2004-CERC dated July 29, 2004. The above notification was published in the gazettee of India extraordinary dated August 3, 2004 and as a result the said Procedure Regulations 2004 came into force from the aforesaid date of its publication in the gazettee of India in accordance with the provisions of clause (2) of Regulation 1 of the said Procedure Regulation, 2004. Section 3 of the said Procedure Regulation, 2004 prescribed the procedure for making application for approval of the tariff by the respondent no.2. According to the provisions of proviso to clause (6) of Regulation 3 of the said Procedure Regulation, 2004, it was not necessary to publish notice of the application made for approval of provisional tariff. The aforesaid provision of proviso to clause (6) of Procedure Regulation 3 of the said Procedure Regulation, 2004, is one of the subject matters of challenge in these writ applications and the above provisions are quoted below: “3. The aforesaid provision of proviso to clause (6) of Procedure Regulation 3 of the said Procedure Regulation, 2004, is one of the subject matters of challenge in these writ applications and the above provisions are quoted below: “3. PROCEDURE FOR MAKING APPLICATION (1) The application shall be made to the Commission in the form appended as Appendix I to the Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations, 2004 and shall be accompanied by such fee as may be specified by the Commission from time to time. (2) Before making the application, the applicant shall serve a copy of the application on each of the beneficiary. (3) The applicant shall post complete application on its own website or any other authorised website, before making the application to the Commission. (4) While making the application to the Commission, the applicant shall indicate whether copy of the complete application has been served on each of the beneficiary and whether the application has been posted on its own website or any other authorised website, with address of the website whereon the application has been posted. (5) The application made shall be supported by affidavit of the person acquainted with the facts stated in the application. The application shall be kept on the website at least for 30 days from the date of publication of the notice of application in accordance with clause (6) of this regulation. (6) The applicant shall, within 7 days after making the application, publish a notice of his application in at least two daily newspapers, one in English language and one in vernacular language, having circulation in each of the State/Union Territory where the beneficiaries are situate in the same language as of the daily newspaper in which the notice of the application is published, as per the specimen given in the schedule to these regulations. Provided that it shall not be necessary to publish notice to the application made for approval of provisional tariff (7) The suggestions and objections, if any, to the proposal for determination of tariff, may be filed before the Secretary, Central Electricity Regulatory Commission, 7th Floor, Core-3, Scope Complex, Lodi Road, New Delhi-110003 (or other address where the office of the Commission is situate) by any person, including the beneficiaries within 30 days of publication of the notice with a copy to the applicant. (8) The applicant shall within 15 days from the date of publication of the notice as aforesaid submit to the Commission on affidavit the details of the notice published and shall also file before the Commission relevant copies of the newspapers in which the notice has been published. (9) The applicant may file his comments on affidavit on the suggestions and objections, if any, received in response to the public notice within 45 days of its publication in the newspapers, with an advance copy to the person who has filed the suggestions and objections on the proposals made in the application.” 9. On June 8, 2005 the respondent no.3 filed tariff Petition No.66 of 2005 before the respondent no.2 in accordance with the provisions of clause (1) of Regulation 3 of the said Procedure Regulation, 2004 for approval of its tariff for the period from 2004 to 2009. In the aforesaid application, the respondent no.3 did not claim any enhancement of tariff as determined on September 1, 2000 but stated that any downward revision in the tariff would effect its ongoing projects. The respondent no.2 passed a tariff order dated October 3, 2006 determining the generation and transmission tariff of the respondent no.3 for the period from 2004 to 2009 after giving opportunity of hearing to the consumers. It was made applicable with effect from April 1, 2006 to March 31, 2009. 10. The respondent no.3 preferred an appeal bearing no.273 of 2007 against the aforesaid order before the Statutory Appellate Tribunal. The Learned Tribunal partially allowed the appeal by an order dated November 23, 2007 and remanded the matter back to the respondent no.2 on limited issues as mentioned therein. 11. Against the aforesaid order of the Statutory Appellate Tribunal, some of the consumers of the respondent no.3 filed Civil Appeal Nos.971-973 of 2007 praying for giving effect to the above order with effect from April 1, 2004 instead of April 1, 2006 on the ground that neither the respondent no.2 nor the Statutory Appellate Tribunal had jurisdiction to allow any utility to continue its own tariff contrary to the said Act, 2003. The above Civil Appeals are still pending. 12. The respondent no.2 passed a revised tariff order dated August 6, 2009, for the period from 2004 to 2009 in compliance of the order dated November 23, 2007 passed by the Statutory Appellate Tribunal. The above Civil Appeals are still pending. 12. The respondent no.2 passed a revised tariff order dated August 6, 2009, for the period from 2004 to 2009 in compliance of the order dated November 23, 2007 passed by the Statutory Appellate Tribunal. The respondent no.3 preferred an appeal bearing No.146 of 2009 against the aforesaid revised tariff order before the Statutory Appellate Tribunal. It was dismissed by the learned Appellate Tribunal by an order dated May 10, 2010 with the observation that the respondent no.3 was under obligation to give immediate effect to the above revised tariff order dated August 6, 2009. The respondent no.3 preferred an appeal bearing civil appeal No.4881 of 2010 before the Hon’ble Supreme Court against the aforesaid order dated May 10, 2010. While admitting the aforesaid appeal on July 9, 2010, the Hon’ble Supreme Court passed an order of Stay only on refund of excess amount to the consumers. The respondent no.3 raised bills on the consumers in the month of July, 2010 implementing the order dated August 6, 2009. 13. The respondent no.3 also filed petition Nos.272 and 279 of 2010 before the respondent no.2 in the month of October 2010 for approval of tariff of Majia Unit no.4 and additional capitalization for other units of Damodar Vally Corporation relating to the period from 2004 to 2009 in terms of the liberty granted by the respondent no.2 by its order dated August 6, 2009. 14. In the meantime, the respondent no.2 framed the Central Electricity Regulatory Commission (terms and conditions of tariff) Regulations, 2009 in exercise of power conferred upon it under section 178 of the said Act, 2003 under notification no.2-7/145(160)/2008-CERC dated January 19, 2009 (hereinafter referred to as the said Regulations, 2009). According to the provisions of clause (2) of Regulation 1, the said Regulation, 2009 came into force for a period of five years from the date of its commencement i.e. from April 1, 2009 to March 31, 2014. The respondent no.3 filed tariff petition No.240/2009 dated October 26, 2009 before the respondent no.2 for the period from 2009 to 2014. 15. In the above petition, the respondent no.3 included the claim which was rejected by the respondent no.2 by its revised tariff order dated August 6, 2009. On February 15, 2010 the respondent no.2 further amended the aforesaid tariff petition bearing No.240 of 2009. 15. In the above petition, the respondent no.3 included the claim which was rejected by the respondent no.2 by its revised tariff order dated August 6, 2009. On February 15, 2010 the respondent no.2 further amended the aforesaid tariff petition bearing No.240 of 2009. Thereafter, the respondent no.2 issued public notice dated February 22, 2010 inviting objections and suggestions in respect of tariff petition No.240 of 2009 relating to the period from 2009-14. Again the above tariff petition was amended for the second time on April 13, 2010 without issuing any public notice in respect of such amendment. The aforesaid tariff application was amended once again on July 2, 2010 without issuing any public notice. 16. The respondent no.3 filed application bearing I. A. No.7 of 2011 in tariff petition No.240 of 2009 before the respondent no.2 in March 2011 for determination of provisional tariff in the period from 2009 to 2014 and the same was dismissed as withdrawn on May 24, 2011. 17. In the mean time, in exercise of power conferred by section 178 of the said Act, 2003, the respondent no.2 introduced Central Electricity Commission (terms and conditions of tariff)(first amendment) Regulations, 2011 by virtue of notification No.8/145(160)/2008/CERC dated May 2, 2011. The above Regulations were issued for the purpose of amendment of the said Regulation, 2009 incorporating clause (4) of Regulation 5 of the same as follows: “(4). Where application for determination of tariff of an existing or a new project has been filed before the Commission in accordance with clauses (1) and (2) of this regulation, the Commission may consider in its discretion to grant provisional tariff upto 95% of the annual fixed cost of the project claimed in the application subject to adjustment as per proviso to clause (3) of this regulation after the final tariff order has been issued: Provided that recovery of capacity charge and energy charge or transmission charge, as the case may be, in respect of the existing or new project for which provisional tariff has been granted shall be made in accordance with the relevant provisions of these regulations.” 18. The vires of the aforesaid clause (4) of Regulation 5 of the said Regulations, 2009 is under challenge in these writ applications. It came into force with effect from May 2, 2011 by virtue of the provisions of clause (2) of regulation 1 of the above Regulations, 2011. The vires of the aforesaid clause (4) of Regulation 5 of the said Regulations, 2009 is under challenge in these writ applications. It came into force with effect from May 2, 2011 by virtue of the provisions of clause (2) of regulation 1 of the above Regulations, 2011. The said provisions are quoted below:- “1. Short title and commencement.–– (1) These rules shall be called the Electricity (Procedure for Previous Publication) Rules, 2005. (2) These rules shall come into force on the date of their publication in the Official Gazettee.” 19. The respondent no.2 passed the order dated June 23, 2011 in petition No.240 of 2009 in exercise of power conferred upon it by clause (4) of Regulation 5 of the said regulations, 2009 granting provisional tariff to the respondent no.3 pending approval of final tariff. By virtue of the impugned order the respondent no.2 further directed the respondent No.3 to file separate petitions for each of its generating stations and transmission system in according with the Regulation 4 of the said Regulation, 2009. The above provisional tariff order dated June 23, 2011 is impugned in these writ applications and the same is quoted below: “Regulation 5 of the Central Electricity Regulatory Commission (Terms and Conditions of Tariff) (First Amendment) Regulation, 2011 provided as under: “(4) Where application for determination of tariff of an existing or a new project has been filed before the Commission in accordance with clauses (1) and (2)of this regulation, the Commission may consider in its discretion to grant provisional tariff upto 95% of the annual fixed cost of the project claimed in the application subject to adjustment as per proviso to clause (3) of this regulation after the final tariff order has been issued: Provided that recovery of capacity charge and energy charge or transmission charge, as the case may be, in respect of the existing or new project for which provisional tariff has been granted shall be made in accordance with the relevant provisions of these regulations.” 2. The Petitioner, Damadar Valley Corporation has filed this petition for determination of tariff for the period 2009-14 in respect of the following generating stations/transmission assets/other assets: S. No. Name of the Station/Assets 1 Bokaro TPS 2 Chandrapura TPS 3 Durgapur TPS 4 Mejia TPS(I to III) 5 Jejia TPS IV 6 Maithon Hydel 7 Panchel Hydel 8 Tilaya Hydel 9 Transmission and distribution 10 Direction office 11 Other offices 12 Central Office 13 Subsidiary Activity 14 R & D Centre 15 Information Technology 3. The annual fixed charges claimed by the petitioner for the period 2009-14 is as under: 2009-10 2010-11 2011-12 2012-13 2013-14 Annual 276133.53 298750.93 325106.56 339159.40 348368.71 Fixed charges claimed 4. In exercise of power under Clause 4 of Regulation 5 of the 2009 regulations, we have decided to grant provisional tariff to the petitioner for its assets mentioned in para 2 above pending determination of the final tariff. 5. 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: 2009-10 2010-11 2011-12 2012-13 2013-14 Annual 193293.47 209125.65 227574.59 237411.58 243858.10 fixed charges claimed 6. Energy Charge Rate in respect of the generating station shall be determined in terms of Clauses 5 and 6(a) of Regulation 21 of the 2009 regulations on month to month basis. 7. The provisional annual fixed charges allowed above is subject to adjustment as per proviso to Clause (3) of Regulation 5 of the 2009 regulations after the final tariff order has been issued. 8. The petitioner is directed to file separate petitions for each of its generating stations and transmission systems, in accordance with Regulation 4 of the 2009 regulations.” 20. The respondent no.3 raised differential power bills dated June 27, 2011 for the period from May 10, 2010 to May 2011 on the strength of provisional tariff order dated June 23, 2011 passed by the respondent no.2 in respect of generating stations and transmission assets of Damodar Valley Corporation. The respondent no.3 further served notices dated August 29, 2011 for disconnection of power supply of petitioner company due of non-payment of the aforesaid differential power bills. The aforesaid differential power bills dated June 27, 2011 as also the above notices dated August 29, 2011 are also under challenge in this writ application. 21. It is submitted by Mr. The respondent no.3 further served notices dated August 29, 2011 for disconnection of power supply of petitioner company due of non-payment of the aforesaid differential power bills. The aforesaid differential power bills dated June 27, 2011 as also the above notices dated August 29, 2011 are also under challenge in this writ application. 21. It is submitted by Mr. Partha Sarathi Sen Gupta, learned Advocate appearing for the petitioner companies in W.P. No.13120(W) of 2011, W.P. No.13120(W) of 2011, W.P. No.15077(W) of 2011, at the very outset that framing clause (4) of Regulation 5 of the said Regulation, 2009, proviso to clause (6) of Regulation 3 of the said procedure Regulation, 2004 as also determination of provisional tariff were violative of the principles of rules of natural justice as guaranteed under Article 14 of the constitution of India. It is submitted by him that clause (4) of Regulation 5 of the said Regulations has been framed by the respondent No.2 under delegated legislative power travelling beyond precise limit of law making power vested in it by virtue of the provisions of the said Act, 2003 for the reasons that (i) clauses(a) to (i) of Section 61 of the said Act, 2003 empowers the respondent No.2 to frame tariff regulations for the purpose of specifying the terms and conditions for determination of tariff and not to introduce the power of granting provisional tariff; (ii) there is absence of safeguard of interest of the consumers as provided in sub-section (d) of Section 61 of the said Act, 2003 in conferring discretionary power to grant provisional tariff up to 95% of the annual fixed cost of the project as claimed in an application; (iii) no power is conferred upon the respondent no.2 to skip over the condition of submitting an application for consideration in its discretion to grant provisional tariff in view of the provisions of sub-section (1) of section 64 of the said Act, 2003; (iv) the respondent no.2 is not empowered to forgo the condition of publishing an application for granting provisional tariff in abridged form as specified in sub-section (2) of section 64 of the said Act, 2003; (v) the respondent no.2 is not empowered wait or to cause delay beyond one hundred twenty days from receipt of an application for determination of tariff in view of the provisions of sub-section (3) of section 64 of the said Act, 2003; (vi) the power of affecting the liberty of the consumers to furnish suggestions and objections and the precondition of considering the same is not delegated to the respondent no.2 for the purpose of granting provisional tariff in view of the provisions of subjection(3) of Section 64 of the said Act, 2003; and (vii) the consequence of giving go by to the aforesaid control mechanism leads to transgression of the legislative policy of ensuring transparency and failure to make regulations consistent with the said Act, 2003 as laid down by the legislature in preamble and sub-section (3) of section 79 and clause (s) of sub-section (2)sub-section and sub-section (s) of Section 178 of the said Act, 2003. According to Mr. According to Mr. Sen Gupta, the delegated legislation of clause (4) of regulation 5 of the said Regulations, 2009 is not only void for the aforesaid reasons but also for violation of the rules of principles of natural justice on the ground of denial of fair play as guaranteed under article 14 of the constitution of India. 22. According to Mr. Sen Gupta, the provisions of proviso to clause (6) of Regulations 3 of the said Procedure Regulations, 2004, have been framed without adhering to or contrary to the mandates of the said Act, 2003, making no provision (i) to safeguard the interest of the consumers; (ii) to publish the application in abridged form; (iii) to consider the suggestions and objections of the consumers; (iv) to ensure transparency; and (v) to maintain consistency with the said Act, 2003 at the cost of transgression power to frame regulations to specify terms and conditions for determination of tariff. It is also submitted by Mr. Sen Gupta that the aforesaid provisions have been made in violation of the provisions of sub-section (d) of section 61, sub-section (2) and (3) of section 64, sub-section (3) of section 79 and clauses (s), (w) of sub-section (2) of section 178 of the said Act, 2003. According to him, the above provisions are ultra vires the provisions of Article 14 of the constitution of India also for the reasons discussed hereinabove. 23. Mr. Sen Gupta relies upon the decisions of Subramanian Swamy Vs. Manmohan Singh & Anr, reported in (2012) 3 SCC 64 ,Centre for Public Interest Litigation Vs. Union of India, reported in (2012)3 SCC 117 , Bharat Singh Vs. State of Haryana, reported in (1988) 4 SCC 534 , Ram Chander Vs. Union of India, reported in (1986) 3 SCC 103 , Anil Amrut Atre Vs. District & Sessions Judge, Aurangabad reported in 2002(3) LLJ 956 , Umesh Prosad Singh Vs. Union of India, reported in (2007) 3 CHN 737 , Bhikhubhai Vithlabhai Patel Vs. State of Gujarat & Anr., reported in (2008) 4 SCC 144 , Ravi Yashwant Bhoir Vs. District Collector, Raigad & Ors., reported in (2012) 4 SCC 407 , Kranti Associates Private Ltd. Vs. Masood Ahmed Khan & Ors., reported in (2010) 9 SCC 496, Punjab State Electricity Board Vs. Ashwani Kumar, reported in (1997) 5 SCC 120 , C. B. Gautam Vs. District Collector, Raigad & Ors., reported in (2012) 4 SCC 407 , Kranti Associates Private Ltd. Vs. Masood Ahmed Khan & Ors., reported in (2010) 9 SCC 496, Punjab State Electricity Board Vs. Ashwani Kumar, reported in (1997) 5 SCC 120 , C. B. Gautam Vs. Union of India, reported in (1993) 1 SCC 78 , Prakash Ratan Sinha Vs. State of Bihar, reported in (2009) 14 SCC 690 , West Bengal Electricity Regulatory Commn. Vs. CESC Ltd., reported in (2002) 8 SCC 715 , PTC India Ltd. Vs. Central Electricity Regulatory Commission, reported in (2010) 4 SCC 603 , Bharathidasan University & Anr. All India Council For Technical Education & Ors., reported in (2001) 8 SCC 676 , Kerala Samsthana Chethu Thozhilali Union Vs. State of Kerala, reported in (2006) 4 SCC 327 , St. Johns Teachers Training Institute Vs. Regional Director, National Council for Teacher Education, reported in (2003) 3 SCC 321 in support of his above submissions. 24. The aforesaid submissions are adopted by Mr. Bikash Ranjan Bhattacharjee, learned Senior Advocate, appearing on behalf of the petitioner companies in W.P. No.11813(W) of 2011, emphasising further on the language chosen by legislature in engrafting the provisions of sub-section (3) of Section 64. According to him, the word “shall” is used in the aforesaid provisions giving a mandate to the respondent no.2 to dispose of a tariff application within a reasonable time for substantial compliance of the above provision. It is submitted by him that the High Court of Jharkhand simply recorded the fact of consideration of relevant file in the case involving some similar issues for the purpose of fishing out reasons in support of the impugned order dated June 23, 2011 passed by the respondent No.2 without disclosing those reasons in the Judgment. 25. The submissions of Mr. Sen Gupta are also adopted by Mr. S. N. Mukherjee, learned senior Advocate appearing on behalf of the petitioner companies in W.P.Nos.11877(W) of 2011 and W.P. No.20431(W) of 2011. It is further submitted by him that no retrospective effect could be given to the provisions of clause (4) of Regulation 5 of the said Regulations, 2009 in view of the provisions of clause (2) of Regulation1 of the Central Electricity Commission(Terms and conditions of tariff) (first amendment) Regulations, 2011 for raising provisional tariff bills for any period prior to May 2, 2011. 26. Reliance is placed by Mr. 26. Reliance is placed by Mr. Mukherjee on the decisions of Global Energy Ltd. Vs. Central Electricity Regulatory Commission, reported in (2009)15 SCC 570 and Uniworth Resorts Ltd. and Ajay Prkash Lohia Vs. Ashok Mittal & Ors., reported in (2007)4 CHN 712 . 27. The submission of Mr. Sen Gupta are adopted by Mr. Sundarananda Pal, learned Senior Advocate, appearing on behalf of the petitioner company in W.P. No.15290(W) of 2012. It is further submitted by him that the residuary power of subordinate legislation as provided in clause (s) of sub-section (2) of Section 178 cannot be used by the respondent No.2 for the purpose of making provisions for granting provisional tariff in view of the norms prescribed by the legislature in clauses (v) and (x) of sub-section (2) of the above section, sub-sections(2) and (3) of section 64 of the said Act, 2003. According to him, the annual fixed cost of the project of the respondent No.3 was not available to the respondent No.3 at the time of passing the impugned order dated June 23, 2011 and the same was passed without adhering to the relevant Judgment of the Hon’ble Supreme Court. 28. It is also submitted by him that no provisional tariff order was passed by the respondent no.2 in case of the petitioner company in the aforesaid writ petition bearing W.P. No.15290(W) of 2012 and as a consequence thereof the impugned bill dated July 6, 2011(at page 71 of the writ application) and notice of disconnection dated August 28, 2011 served upon his client are liable to be set aside. 29. He relied upon the decisions of Sherratt Ltd. Vs. Bromley Ltd, reported in 1985(1) ALL ER 221, Manohar Lal Vs. Ugrasen, reported in AIR 2010 SC 2210 and STP Ltd., Vs. Nirmaljit Sing Hoon, reported in (2002) 1 CLT 76. 30. While adopting the submissions made by Mr. Sen Gupta it is submitted by Mr. Lakshmi Gupta, learned Senior Advocate, appearing on behalf of the petitioner company in W.P. No.15214(W) of 2011, that no power is conferred upon the respondent no.2 to grant the impugned provisional tariff in exercise of powers under sub-section (2) of Section 94 of the said Act, 2009. Sen Gupta it is submitted by Mr. Lakshmi Gupta, learned Senior Advocate, appearing on behalf of the petitioner company in W.P. No.15214(W) of 2011, that no power is conferred upon the respondent no.2 to grant the impugned provisional tariff in exercise of powers under sub-section (2) of Section 94 of the said Act, 2009. According to him, the provisions of clause (4) of Regulation 5 of the said Regulations, 2009, came into force with effect from May 2, 2011 in accordance with the provisions of sub-section (2) of Section 1 of the Central Electricity Commission (terms and conditions of tariff) (first amendment) Regulations, 2011. According to him, the impugned differential power bills cannot be sustained in law due to the aforesaid reasons. It is also submitted by him that no interim order could be passed bypassing the conditions of considering the suggestions and objections of the consumers in view of the provisions of sub-section (3) of Section 64 of the said Act, 2003. 31. Reliance is placed by Mr. Gupta on the decision of The Income Tax Officer, Alleppey Vs. M. C. Ponnoose & Ors., reported in AIR 1970 SC 385 ,The Cannanore Spinning & Weaving Mills Ltd. Vs. The Collector of Customs and Central Excise Cochin & Ors., reported in AIR 1970 SC 1950 ,Vice Chancellor M D. University Rohtak Vs. Jahan Singh, reported in (2007)5 SCC 77 , The State Gujarat Vs. Patil Raghavnatha & Ors., reported in (1969) 2 SCC 187 and Pune Municipal Corpn. Vs. State of Maharashtra, reported in (2007)5 SCC 211 . 32. The aforesaid submissions made by the learned counsels appearing on behalf of the petitioner companies are adopted by Mr. Shyamal Sarkar, learned Advocate appearing on behalf of the petitioner company in W.P. No.20133(W) of 2011. 33. It is submitted by Mr. Sagar Bandopadhyay, appearing on behalf of the petitioner companies in some of the above writ petitions that the provisions of conditions (2) and (7) of clause (6) regulation 3 of the said Procedure Regulations, 2004 are in existence and as a result impugned order dated June 23, 2011 is passed violating the above provisions without serving copy of the application dated October 26, 2009 upon the petitioner companies. It is also submitted by him that granting of impugned provisional tariff in absence of any prayer made in the tariff petition dated October 26, 2009 is liable to be set aside. It is also submitted by him that granting of impugned provisional tariff in absence of any prayer made in the tariff petition dated October 26, 2009 is liable to be set aside. 34. Appearing on behalf of the respondent no.3 it is submitted by Mr. Kalyan Bandyopadhyay, learned senior advocate at the very outset, that no relief can be granted to the petitioners in these writ applications in view of the admitted fact that none of them filed any suggestion and/or objection before the respondent No.2 in respect of the tariff petition no.240 of 2009 dated October 26, 2009 filed by the respondent no.3. As a result, the question of consideration of any objection or suggestion does not arise at all these cases. Secondly, according to him, neither any prejudice was pleaded the writ applications nor any prejudice was caused due to granting of provisional tariff dated June 23, 2011 relating to the period 2009-2014 in view of the provisions of sub-section (6) of Section 62 of the said Act, 2003. Thirdly, it is submitted by Mr. Bandyopadhyay that the provisions of sub-section (1) of Section 111 of the said Act, 2003 provided adequate alternative remedy for preferring an appeal by the aggrieved person and the petitioner companies did not avail of such opportunity before filing these writ applications. 35. According to Mr. Bandyopadhyay, concept of provisional arrangement for realization of price and charges for consumption of electricity was not introduced for the first time by virtue of incorporating clause (4) of Regulation 5 of the said Regulations, 2009. Clause (3) of Regulation 5 of the said Regulations, 2009 provided for payment of price and charges for consumption of electricity at the old rate during the pendency of a tariff petition. That apart, according to Mr. Bandyopadhyay, sub-section (2) of Section 94 empowers the respondent no.2 to pass interim order during pendency of any proceeding, hearing or matter before the appropriate commission. 36. According to Mr. Bandyopadhyay, plain and simple meaning of the provisions of sub-section (d) of section 62 of the said Act, 2003 purported maintaining of transparency therefore an attempt to take the help of the preamble and/or the statement of objects and reasons of the said Act, 2003 was not required to be taken into consideration for interpretation of the aforesaid provisions. 37. According to Mr. 37. According to Mr. Bandyopadhyay, determination of tariff means and includes fixation of price and charges of electricity as mentioned in sub-sections (a) to (d) of section 62 of the said Act, 2003. It is a legislative function. According to him, the rules of principles of natural justice are not applicable in a case of fixation of price. According to him, the respondent no.2 was under obligation to discharge its functions in the matters of subordinate legislation and determination of tariff within the scope and ambit of the provisions of the said Act, 2003. It is submitted by him that there was no provision for passing a reasoned order or for affording opportunity of hearing save and except in case of rejecting a tariff application as provided in proviso to sub-section (b) of Section 64 of the said Act, 2003. According to Bandyopadhyay when the statute provided for a particular contingency affording of such opportunity in any other situation was not permissible. 38. It is further submitted by Mr. Bandyopadhyay that the reasons for incorporating the provisions of clause (4) of Regulation 5 in the said Regulations, 2009 were available from the explanatory memorandum which was under consideration of the respondent no.2 at the time of framing of the above regulation. The escalation of price index, increase in the expenditure relating to the remuneration and other allowances of the employees of the licensee etc. were those considerations. 39. It is also submitted by Mr. Bandyopadhyay that the impugned provisional tariff order did not suffer from arbitrariness in view of the direction of realization of 70% of the annual fixed cost only. 40. According to Mr. Bandyopadhyay, identical issues were examined by the Jharkhand High Court in the matter of M/s. Gautam Ferro Alloys Vs. The Union of India & Ors and other writ applications but the above writ applications were dismissed. 41. Reliance is placed by Mr. Bandyopadhyay on the decisions of K. T Plantation private Limited & Anr. Vs. State of Karnataka, reported in (2011) 9 SCC 1 , Bihar State Electricity Vs. Pulak Enterprises & Ors., reported in (2009) 5 SCS 641, H.S.S.K. Niyami & Anr. Vs. Union of India & Anr., reported in (1990)4 SCC 516 , BALCO Employees Union(Tefg.) Vs. Union of India, India, reported in (2002) 2 SCC 333 , Indian Airlines Officers Assn. Vs. State of Karnataka, reported in (2011) 9 SCC 1 , Bihar State Electricity Vs. Pulak Enterprises & Ors., reported in (2009) 5 SCS 641, H.S.S.K. Niyami & Anr. Vs. Union of India & Anr., reported in (1990)4 SCC 516 , BALCO Employees Union(Tefg.) Vs. Union of India, India, reported in (2002) 2 SCC 333 , Indian Airlines Officers Assn. Vs. Indian Airlines Ltd. , reported in (2007) 10 SCC 684 , Sachindanand Pandey Vs. State of West Bengal & Ors, reported in (1987) 2 SCC 295 , M/s. New India Sugar Works Vs. State of Uttar Pradesh, reported in (1981) 2 SCC 293 , Union of India Vs. Amrik Sing, reported in AIR 1991 SC 564 , Union of India Vs. Tulsiram Patel, reported in (1985) 3 SCC 398 , Carborundum Universal Ltd. Vs. Central Board of Direct Taxes, New Delhi, reported in (1989) Supp 2 SCc 462, Union of India Vs. Jyoti Prakash Mitter, reported in (1971) 1 SCC 396 , M/s. Laxmi Khandsari & Ors. Vs. State of U.P. & Ors, reported in (1981) 2 SCC 600 , Maharashtra Rajya Sahakari Sakkar Karkhana Sangh Vs. State of Maharashtra & Ors. reported in (1995) Supp 3 SCC 475, Travancore R & T Co. Ltd. Vs. The Commissioner of Agricultural Income Tax, Kerala, reported in AIR 1961 SCC 604, Jawaharlal Nehru University Vs. B. S. Narwal, reported in (1980) 4 SCC 480 , Union of India & Anr. Vs. Jesus Sales Corporation, reported in (1996) 4 SCS 69, Union of India & Ors. Vs. Indian Jute Mills Association & Ors., reported in (2005) 10 SCC 69 , State of Punjab Vs. Tehal Singh, reported in (2002) 2 SCC 7 , Kailash Vs. Nanhku & Ors., reported in (2005) 4 SCC 480 , Lalita Kumari Vs. State of U.P., reported in (2012) 4 SCC 1 , J. K. Housing Board & Anr. Vs. Kunwar Sanjay Krishan Kaul & Ors., reported in (2011) 10 SCC 714 , Nasiruddin & Ors. Vs. Sita Ram Agarwal, reported in (2003) 2 SCC 577 , May George Vs. Special Tahsilkar & Ors. Vs. (2010) 13 SCC 88 , Kattatraya Vs. State of Bombay, reported in 1952 SCC 181, Md. Yeasin & Ors. Vs. State of West Bengal & Ors., reported in 2006(3) CHN 655 , Essar Oil Ltd Vs. Halar Utkarsh Samiti & Ors., reported in (2004) 2 SCS 392, Nagar Nigam Meerut Vs. Special Tahsilkar & Ors. Vs. (2010) 13 SCC 88 , Kattatraya Vs. State of Bombay, reported in 1952 SCC 181, Md. Yeasin & Ors. Vs. State of West Bengal & Ors., reported in 2006(3) CHN 655 , Essar Oil Ltd Vs. Halar Utkarsh Samiti & Ors., reported in (2004) 2 SCS 392, Nagar Nigam Meerut Vs. Al Faheem Meaat Exports(P) Ltd., reported in (2006) 13 SCC 382, Mrs. Fatma Haji Ali Mohammad Hajee & Ors. Vs. The State of Bombay , reported in AIR 1951 SC 180 , Southern Technologies Ltd. Vs. Joint Commissioner of Income Tax, Coimbatore, reported in (2010) 2 SCC 548 , People’s Union for Civil Liberties & Anr., reported in (2009) 3 SCC 200 , Kunga Nima Lepcha & Ors. Vs. State of Sikkim & Ors., United Bank of India Vs. Satyawati Tondon & Ors., reported in (2010) 8 SCC 110 , Chief Security Commissioner Vs. Ranadhir Kr. Pandey (Cal), reported in 1998(4) SLR 665, Union of India & Ors. Vs. E.G. Nambudiri, reported in (1991) 3 SCC 38 , M. J. Sivani & Ors. Vs. State of Karnataka, reported (1995) 6 SCC 289 , Joint Commissioner of Income of Income Tax, Surat Vs. Saheli Leasing & Industries Ltd, reported in 2010 AIR SCW 3167, Sri Jeyram Educational Trust Vs. A. G., reported AIR 2010 SC 671 , Orissa Public Service Commission & Anr. Vs. Pupashree Chowdhury & Anr., reported in (2011)8 SCC 108 , Union of India & Ors. Vs. Brigadier P. S. Gill, reported in (2012) 4 SCC 463 , Bhaiji Vs. Sub Divisional Officer, Phandla & Ors., reported in (2003) 1 SCC 692 , Moore Vs. Hewitt, reported in King’s Bench Division. 42. The learned Additional Solicitor General Mr. Farook M. Razack appeared on behalf of the respondent no.2 and repeated and reiterated the submission made by Mr. Kalyan Kumar Bandopadhyay, learned Senior Advocate. 43. Mr. Razack relied upon the decisions of May George Vs. Special Tahsildar & Ors. reported in (2010) 13 SCC 98 , State of Madhyapadesh Vs. Rakesh Kohali, reported in (2012) 6 SCC 312 & Mississippi Valley Barge Line Co. Vs. United States of America Inter-State Commerce, Commission, General Rail Road, Co., reported in 292 U.S.281, 282-Supreme Court of the United States- OCT Term. 44. Special Tahsildar & Ors. reported in (2010) 13 SCC 98 , State of Madhyapadesh Vs. Rakesh Kohali, reported in (2012) 6 SCC 312 & Mississippi Valley Barge Line Co. Vs. United States of America Inter-State Commerce, Commission, General Rail Road, Co., reported in 292 U.S.281, 282-Supreme Court of the United States- OCT Term. 44. I have heard the learned counsel appearing for the respective parties at length and I have given my thoughtful considerations to the facts and circumstances of this case. The first ground for challenging the validity of clause (4) of Regulation 5 of the said Regulations, 2009 as also proviso to Clause (6) of Regulation 3 of the said procedure Regulations, 2004 is the violation of principles of natural justice. According to the petitioners the regulations under reference are ultra vires the constitution of India. It is also the case of the petitioners that impugned actions in determining the provisional tariff were also liable to be quashed and set aside on the ground of violation of principles of natural justice. 45. In order to examine the validity of the challenge thrown by the petitioners on the above ground, the nature of function of the authority under the provisions under reference is required to be examined first. Rival claims have been made by the parties with regard to the nature of function of the respondent authority which are to be exercised under the Regulations under reference and in respect of passing the provisional tariff order. While, according to the petitioners the above functions were adjudicatory in nature, it is the claim of the respondent numbers 2 and 3 that the above functions are legislative in nature. 46. When India got independence, the administrative law was in an incipient state because the British Government functioned more or less as a “Police” State. The main function of the Government was to maintain law and order within the country, defend it against external aggression and to collect a few taxes for the purpose of meeting expenses of the Government. 47. The constitution of India lays emphasizes on the State working for amelioration of the social economic conditions of the people. The Government has been given powers to take administrative actions, powers to legislate and to adjudicate. Innumerable administrative bodies, quasi judicial bodies, tribunals, regulatory bodies and public sector enterprises have been set up in the country. 47. The constitution of India lays emphasizes on the State working for amelioration of the social economic conditions of the people. The Government has been given powers to take administrative actions, powers to legislate and to adjudicate. Innumerable administrative bodies, quasi judicial bodies, tribunals, regulatory bodies and public sector enterprises have been set up in the country. Proliferation of the administrative process takes place on a vast scale as a consequence of exercising this power. 48. The post independence trend in our country is this the legislature confines itself to lay down broad policies and principles in the legislation. It indicates and delegates the task of shaping and formulating details to the concerned agencies within the framework of the statute concerned. 49. The function of price fixing may be legislative in nature or the same may also involve administrative or quasi judicial authority depending upon the directions of the legislature as may be ascertained from the relevant provisions of the concerned Act. Fixation of tariff with reference to a class of people or organization in general is a function of legislative nature but when the above power is exercised with regard to individual which may be questioned in a statutory appeal is a function of adjudicatory nature. 50. Section 178 of the said Act 2003 confers powers upon the respondent no.2 for making regulations for prescribing the mode of determination of tariff or in other words price fixation. It is legislative in nature. Section 79 of the said Act, 2003 confers power upon the respondent no.2 to regulate the tariff of generating companies separately adhering to the national electricity policy and National Electricity Plan as also ensuring transparency while exercising its powers the discharging its functions. 51. Legislative power is the power to prescribe the law for the people in general while administrative power is the power to prescribe the law for them or to apply the law to them, in particular situation. In the matter of PTC India Ltd. Vs. Central Electricity Commission, reported in (2010) 4 SCC 603 a constitution bench of the Hon’ble Supreme Court was pleased to examine the powers conferred upon the respondent no.2 under the provisions of section 79 and 178 of said Act, 2003 and came to conclusion that the former are administrative/adjudicatory functions whereas the later are legislative in nature. The relevant portions of the above decision are quoted below: “53. The relevant portions of the above decision are quoted below: “53. Applying the abovementioned testes to the scheme of the 2003 Act, we find that under the Act, the Central Commission in a decision making as well as regulation-making authority, simultaneously, Section 79delineates the functions of the Central Commission broadly into two categories-mandatory functions and advisory functions. Tariff regulation, licensing (including inter-State trading licensing), adjudication upon disputes involving generating companies or transmission licensees fall under the head “mandatory functions” whereas advising the Central Government on formulation of National Electricity Policy and tariff policy would fall under the head “advisory functions. In this sense, the Central Commission is the decision-making authority. Such decision-making under Section 79(1) is not dependent upon making of regulations under Section 178 by the Central Commission. Therefore, functions of the Central Commission under Section 178. The former are administrative/adjudicatory functions whereas the latter are legislative. (Emphasis supplied) 52. On the basis of the settled proposition of law, I have no hesitation to come to a conclusion that the function of the respondent no.2 in fixing the tariff for the generating company for supplying electricity to its licensee under the provisions of sections 61, 62, 64, 79 and 111 is administrative /adjudicatory in nature and such function has to be performed adhering to all trappings of the rules principles of natural justice. The respondent no.2 is under obligation to perform its legislative function of prescribing the mode of regulating tariff under the provisions of section 178 keeping in mind the above proposition of law. 53. Therefore, the decisions of PTC India Ltd.(supra), K.T. Plantation Pvt. Ltd.(supra), Biher State Electricity Board (supra), H.S.S.K. Niyami (supra), Tehal Singh (supra), Balco Employees’ Union (Regd.) (supra), Indian Airlines Officer’s Assn. (supra), Sachidananda Panday (supra), New India Sugar Works (supra), Amrik Singh (Ex. Constable) (supra), Tulsiram Patal (supra), Carborundum Universal Ltd.(supra), Jyoti Prakash Mitter (supra) Laxmi Khand Sari(supra), Maharashtra Rajya Saharakari Sakkar Karkhana Sangh Ltd.(supra), Jusis Sales Corp. (supra), Jahawarlal Neheru University (supra), Indian Jute Mills Assn. (supra), Synamide India Ltd.(supra) and Shri Sitaram Sugar Co. Ltd.(supra), Travancore R. & T. Co. Ltd (supra) cannot come as an aid to the submission made on behalf of the respondent 2 and 3 that principles of natural justice has no manner of application in the matter of fixation of tariff under the provisions of said Act, 2003. 54. (supra), Synamide India Ltd.(supra) and Shri Sitaram Sugar Co. Ltd.(supra), Travancore R. & T. Co. Ltd (supra) cannot come as an aid to the submission made on behalf of the respondent 2 and 3 that principles of natural justice has no manner of application in the matter of fixation of tariff under the provisions of said Act, 2003. 54. On the basis of the above conclusion, now this court is to examine the validity of the legislative function discharged by the respondent no.2 in framing the provisions of clause (4) of Regulation 5 of the said Regulations, 2009 for fixation of provisional tariff of the generating companies in respect of its different licensees separately. 55. After considering the provisions of Section 61 of the said Act, 2003 I find that it empowers the respondent no.2 to specify the terms and conditions for determination of tariff of the respondent no.3, amongst others, safeguarding the interest of the petitioners and at the same time, recovery of cost of electricity in a reasonable manner. Section 62 of the said Act, 2003 prescribes for determination of tariff of the respondent no.3, amongst others, in accordance with the other provisions of the said act, 2003. Section 64 of the said act, 2003 empowers the respondent no.2 to adopt the tariff provided such tariff has been determined through transparent process of bidding in accordance with the guidelines issued by the Central Government. After considering the provisions of section 64 of the said Act, I find the same is the king pin of the procedure to be adopted by the respondent no.2 for passing tariff order. Sub-section (1) of the above provision gives a mandate to the respondent no.2 to pass a tariff order after accepting an application for determination of tariff. Sub-section (2) of the above section prescribes publishing of such application in abridged form and manner. Sub-section (3) of the above provision directs the respondent no.2 to issue tariff order on receipt of an application of sub-section (1) of the above section within 120 days after considering all suggestion and objections received from public. Proviso to clause (b) of sub-section (3) of the above section directs the respondent no.2 to give a reasonable opportunity of being heard to the respondent no.3 before rejecting its application. 56. Proviso to clause (b) of sub-section (3) of the above section directs the respondent no.2 to give a reasonable opportunity of being heard to the respondent no.3 before rejecting its application. 56. After considering clause (4) of Regulation 5 of the said Regulation, 2009, which is impugned in this writ application, I find that it empowers the respondent no.2 to pass a provisional tariff. Above concept is absent in the scheme framed by the legislature under section 64 read with the provisions of sections, 61,62 and 63 of the said act, 2003. The aforesaid impugned Regulation empowers the respondent no.2 to pass a provisional tariff order even without receiving an application from the respondent no.3. None of the provisions of the said Act, 2003 empowers the respondent no.2 to pass any order relating to tariff or fixation of price for supply of electricity by a generating company in such a manner. It is the settled proposition of law that in a conditional legislation, the law is full and complete when it leaves the legislative chamber, but the operation of law is made dependent upon the fulfillment of a condition, and what is delegated to an outside body is the authority to determine, by the exercise of its own judgment, whether or not the condition has been fulfilled. Such a legislation does not empower the delegate to make subordinate legislation in course of exercising its legislative power to make subordinate legislation travelling beyond the provisions of that legislation. The observations of a constitution bench of the Hon’ble Supreme Court in respect of the reference made by Excellency The President of India under Article 143(1) of the constitution of India in re. : Delhi LAW ACT, 19112, AJMER MERWARA (EXTENSION OF LAWS) ACT, 1947- AND PART “C” STATES (LAWS)ACT, 1950, reported in AIR 1951 SC 332 , are quoted below: “302. In a conditional legislation, the law is full and complete when it leaves the legislative chamber, but the operation of the law is made dependent upon the fulfillment of a condition, and what is delegated to an outside body is the authority to determine, by the exercise of its own judgment, whether or not the condition has been fulfilled. In a conditional legislation, the law is full and complete when it leaves the legislative chamber, but the operation of the law is made dependent upon the fulfillment of a condition, and what is delegated to an outside body is the authority to determine, by the exercise of its own judgment, whether or not the condition has been fulfilled. “The aim of all legislation.” Said O’Conner, J. in Baxter v. Ah Way 119 “is to project their minds as far as possible into the future and the provide in terms as general as possible for all contingencies likely to arise in the application of the law. But it is not possible to provide specifically for all cases and therefore legislation from the very earliest times, and particularly in more modern times, has taken the form of conditional legislation, leaving it to some specified authority to determine the circumstances in which the law shall be applied or to what its operation shall be extended, or the particular class of persons or goods or things to which it shall be applied”. In spite of the doctrine of separation of powers, this form of legislation is well recognized in the legislative practice of America, and is not considered as an encroachment upon the anti-delegation rule at all. As stated in a leading Pennsylvania case 32, “the legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of Government. There are many things upon which wise and useful legislation must depend, which cannot be known to the law-making power and must, therefore, be a subject of enquiry and determination outside the halls of legislation”. 57. Therefore, framing of clause (4) of Regulation 5 of the said Regulation, 2009 is ultra vires the constitution of India in absence of any provisions for the purpose of adhering to the principles of natural justice at the time of passing the provisional tariff order as also ultra vires the provisions of section 64 read with those of section 61, 62, 63, 79 and section 111 for travelling beyond the scheme framed by the legislature under the said Act. 58. 58. So far as the provisions of proviso to clause (6) of Regulation 3 of the said procedure Regulation, 2004 are concerned I find that publishing of notice of the application made for approval of provisional tariff was exempted. But it was contrary to the provisions of sub-sections (2) and (3) of section 64 of the said Act, 2003 and also that of sub-section (3) of Section 79 of the said Act, 2003. Apart from the question of violation of the principles of natural justice guaranteed under article 14 of the constitution of India in discharging administrative/adjudicatory functions. 59. In view of the above propositions of law the decisions of National Insurance Co. Ltd.(supra), Baburam Upadhaya (supra), Southern Technologies Ltd. (supra), Essar Oil Ltd. (supra), Al, Al Faheem Meet Exports Tea Ltd. (supra), Peoples Union for Civil Liberties (supra), Kunganima Lepcha (supra), Satyabati Tandon (supra), E.G. Nambudiri (supra), M.J. Sivani (supra), Sri Jjyaram Educational Trust (supra), Orissa Public Service Commission (supra), Brig. P. S. Gill (supra), Bhaiji (supra) and Rakesh Kohali (supra), Dattaraya (supra), Md. Yasin (supra), Nagar Nigam Meerut (supra), Ranvir Kr. Panday (supra), Sahali Leasing & Industries Ltd. (supra), Moore (supra), Rakesh Kohl (supra) and Mississippi Valley Berge line Co. (supra) do no help the respondent nos. 2 and 3 in any manner so far as the question of validity of framing clause (4) of Regulation 5 of the said Regulation, 2009 and proviso to clause (6) of Regulation 3 of the said procedure Regulation, 2004 is concerned. 60. The next question which has cropped up is the validity of the provisional tariff order dated June 23, 2011 passed by the respondent no.2 in the matter of Damadoor valley corp. petition no.240 of 2009 for the period of 2009 to 2014 and the differential power bills raised by the respondent no.3. I find that the respondent nos.2 and 3 discharged their respective functions in exercise of respective powers conferred upon them by the provisions of clause (4) of Regulation 5 of the said Regulation, 2009 and proviso to clause (6) of Regulation 3 of the said Procedure Regulations, 2004, leaving aside the fact of coming to a conclusion that the above provisions are ultra vires the constitution and the said Act, 2003, I cannot accept the submission made on behalf of the respondent nos. 2 and 3 that the source of the power to pass a provisional tariff order could be the provisions of sub-section (2) of section 94 of the said Act, 2003 for the following reasons: i. Power of passing an interim order was exercised in absence of any application therefor; ii. No reason was assigned in the provisional tariff order and there was no scope for examining the prima facie consideration or balance of convenience and/or inconvenience by the appellate authority in case of preferring of an appeal under section 111 of the said Act, 2003; iii. Though the above provisional order was passed by the respondentno.2 in exercise of adjudicative power, no opportunity was given to the petitioners to deal with the above aspect of the matter; iv. No provisional tariff order could be passed in exercise of power conferred to the respondent no.2 in exercise of power under reference while dealing with the task of determination of tariff contradicting the provisions of section 64. 61. For the above reasons, the impugned provisional tariff order dated June 23, 2011 of the respondent no.2 and impugned differential power bills raised by the respondent no.3 cannot be sustained in law. 62. Now, the question of interpretation of the procedural law prescribed in sub-section (3) of section 64 is taken up for consideration. A question has cropped up in this case whether the above provision for passing a tariff order within 120 days is mandatory or directory condition? SIR WILLIAM WADE observed in his “ADMINISTRATIVE LAW”, 8th EDITION (at page 227) as follows: “Acts of Parliament conferring power on public authorities very commonly impose conditions about procedure, for example by requiring that a notice shall be served or that action shall be taken within a specified time or that the decision shall state reasons. If the authority fails to observe such a condition, is held to be mandatory or directory. Non-observance of a mandatory condition is fatal to the validity of the action. But if the condition is held to be merely directory, its nonobservance will not matter for this purpose. In other words, it is not every omission or defect which entails the drastic penalty of invalidity. The distinction is not quite so clear-cut as this suggests, since the same condition may be both mandatory and directory: mandatory as to substantial compliance, but directory as to precise compliance……..” 63. In other words, it is not every omission or defect which entails the drastic penalty of invalidity. The distinction is not quite so clear-cut as this suggests, since the same condition may be both mandatory and directory: mandatory as to substantial compliance, but directory as to precise compliance……..” 63. The Hon’ble Supreme observed in the matter of May George (supra) reported in (2010) 13 SCC 88 as follows: “18. In Raza Buland Sugar Co. Ltd. V. Municipal Board, Rampur and State of Mysore v. V.K. Kangan, this Court held that as to whether a provision is mandatory or directory, would, in the ultimate analysis, depend upon the intent of the lawmaker and that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequence which would follow from construing it in one way or the other. 19. In Sharif-ud-Din v. Abdul Gani Lone this court held that the difference between a mandatory and directory rule is that the former requires strict observance while in the case of latter, substantial compliance with the rule may be enough and where the statute provides that failure to make observance of a particular rule would lead to a specific consequence, the provisions has to be construed as mandatory.” 64. After careful consideration of the provisions of clauses (a) and (b) of subsection (3) of section 64, I find that function of the respondent no.2 invite only two contingencies—Either to accept an application subject to modifications of such conditions as may be specified in that order, if any, or to reject that application. Therefore, the provision under reference is mandatory as to substantial compliance, but directory as to precise compliance. 65. In view of the above settled proposition of law, the decision of Kailash (supra), Lalita Kumari (supra), J. K. Housing Board (supra), do not help the respondent no.2 and 3. 66. I have carefully considered the judgment delivered by the High Court of Jharkhand at Rachi in the matter of Gautam Ferro Allys Vs. Union of India, (in re. W.P.(C) No.4097 of 2011), so far as its persuasive value is concerned. 66. I have carefully considered the judgment delivered by the High Court of Jharkhand at Rachi in the matter of Gautam Ferro Allys Vs. Union of India, (in re. W.P.(C) No.4097 of 2011), so far as its persuasive value is concerned. In view of the discussion and observations made herein above, I cannot accept the findings of the above decision that the argument advanced by the learned counsel is hyper technical or the provisions of said act, 2003 empowers the respondent no.2 to pass provisional tariff in a proceeding pending before it or that the impugned provisions have been framed in accordance with those provisions. With regard to the conclusion of correct assessment of provisional tariff, I beg to differ with the same because it is not open for a court sitting in Writ jurisdiction to examine the calculation made by the expert body. Judicial review under article 226 of the constitution of India empowers a court to examine decision making process only and not the decision. That is why I have not examined the relevant records of the respondent no.2 for the purpose of coming to a conclusion with regard to correctness of assessment of provisional tariff or to verify the reasons in support of exercising its legislative power under section 178 to frame/amend Regulations for exercising adjudicatory power for such determination of provisional tariff. 67. On the basis of the discussions and observations made hereinabove, the provisions of clause (4) of Regulation 5 of the Central Electricity Regulatory Commission(Terms and Conditions of Tariff) Regulations, 2009 and proviso to clause (6) of Regulation 3 of the Central Regulatory Commission (Procedure of making application for determination of tariff, publication of the application and other related matters) Regulations, 2004 are declared ultra vires the constitution of India and the Electricity Act, 2003 and the same are quashed and set aside. The impugned provisional tariff order dated June 23, 2011 passed in the matter of Damodar Valley Corporation Vs. West Bengal State Electricity Distribution Co. Ltd., Kolkata and Ors. in petition no.240 of 2009 by the respondent no.2 for the period from 2009 to 2014 and impugned differential power bills raised by the respondent no.3 for the period from May 2010 to May 2011 on the basis of the impugned provisional tariff order are also quashed and set aside. 68. Ltd., Kolkata and Ors. in petition no.240 of 2009 by the respondent no.2 for the period from 2009 to 2014 and impugned differential power bills raised by the respondent no.3 for the period from May 2010 to May 2011 on the basis of the impugned provisional tariff order are also quashed and set aside. 68. The respondent no.2 is directed to pass tariff order in respect of the application filed by the respondent no.3 in the above petition no.240 of 2009 for the period from 2009 to 2014 in accordance with law within a period of two months from date and to communicate the same to the parties within two weeks thereafter. 69. All these writ applications are disposed of accordingly. 70. There will be, however, no order as to costs. 71. Urgent Photostat plain copy, duly counter signed by the Assistant Registrar (Court), be given to the learned advocate for the parties on usual undertakings.