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Madhya Pradesh High Court · body

2020 DIGILAW 1220 (MP)

Shiva Compressed Air Products v. State of M. P.

2020-11-11

VISHAL MISHRA

body2020
ORDER 1. Present petition is begin filed against the order dated 3.10.2020 passed by respondent No.3 whereby, final order in exercise of powers under section 126 of the Electricity Act, 2003 (herein after would be referred as to the “Act of 2003”) has been passed against the petitioner raising demand of Rs.39,52,749/-. 2. It is argued that the demand so raised is unconstitutional and the representation submitted by the petitioner has been rejected by non speaking order. It is pointed out that as impugned order is in violation of statutory provisions provided under section 126 (3) of the Act of 2003 wherein, there is specific stipulation that the opportunity to file response to the show cause notice as well as of personal hearing should be granted to the petitioner prior to passing any order and raising any demand. The impugned order is non speaking order and no opportunity of personal hearing was granted to the petitioner, therefore, the impugned order is in violation of principles of natural justice. Therefore, the petitioner has filed this petition directly before this court placing reliance upon the judgment rendered by Hon'ble apex Court in the case of Whirlpool Corporation v. Registrar of Trade Marks reported in AIR 1999 SC 22 . It is argued that the petitioner is a partnership firm and has been authorized to file present petition. The documents are filed along with the petition. The petitioner is manufacturing Oxygen which is a life saving component presently due to Covid 19 Pandemic situation which is prevailing in the entire country and the petitioner unit is involved in manufacturing oxygen for being supplied to the Government Hospitals but by passing impugned order, the respondent authorities have raised a huge demand which is illegal and if the petitioner is not able to deposit the amount then the electricity supply will be disconnected. Therefore, in such situation, there is no remedy available to the petitioner except to approach this Court for redressal of his grievance. Therefore, in such situation, there is no remedy available to the petitioner except to approach this Court for redressal of his grievance. It is argued that in pursuance to the tariff rules which have been formulated by the respondents clause 1.1.5 has specifically stipulates that for the financial year 20019-20 pertaining to additional charges for excess demand where provision is made that in case the actual maximum demand is any month exceeds 120% of the contract demand the tariff given in the schedule applied to the extent of 120% of the contract demand. It is argued that the petitioner has never exceeded the aforesaid limit and whatever the extra electricity was consumed by them they are regularly making payment of the same to the respondents. But the aforesaid aspect has not been taken into consideration by the respondent authorities while passing the impugned order. Even the order impugned is totally non speaking order and in a single line, the representation submitted by the petitioner has been rejected without considering the grounds raised by him and a huge amount has been raised against them. He has prayed for quahsment of the impugned order. 3. Per contra, counsel for the respondents No.2 and 3 have stated that the petitioner has directly approached this Court despite of the fact that he is having alternative and efficacious remedy under section 127 of the Act of 2003. It is argued that all the averments which have been made in the petition can be examined by the appellate authority. But he fairly submits that the order impugned appears to be a non speaking order as it does not reflect any consideration of the grounds raised by the petitioner. In such circumstances, he fairly submits that the authority will reconsider the entire case of the petitioner within a short span of time and will again pass an order after granting opportunity of hearing to the petitioner. 4. Heard the learned counsel for the parties. 5. The Hon'ble apex Court in M/s Kranti Associates Pvt. Ltd. And another v. Masood Ahmed Khan and others (2010) 9 SCC 496 opined that the reasons are heartbeat of conclusion. In absence of reasons, conclusion cannot sustain judicial scrutiny. In the said judgment, the apex Court emphasized the need of assigning reasons in administrative, quasi judicial and judicial orders. The relevant portion of the said judgment reads as under:- “51. In absence of reasons, conclusion cannot sustain judicial scrutiny. In the said judgment, the apex Court emphasized the need of assigning reasons in administrative, quasi judicial and judicial orders. The relevant portion of the said judgment reads as under:- “51. Summarizing the above discussion, this Court holds: a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. b. A quasi-judicial authority must record reasons in support of its conclusions. c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. g. Reasons facilitate the process of judicial review by superior Courts. h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. j. Insistence on reason is a requirement for both judicial accountability and transparency. k. If a Judge or a quasi- judicial authority is not candid enough about his/her decision making process then M/S Kranti Asso. Pvt. Ltd. & Anr v. Masood Ahmed Khan & Ors on 8 September, 2010 it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process. l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process. m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions". o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process". 6. Taking into consideration the over all facts and circumstances of the case, the order impugned dated 3.10.2020 has no legs to stand as the same is totally a non speaking order, hence, it is hereby quashed. In view of the specific statement made by counsel for the respondents No.2 and 3, this court deems it appropriate to dispose of the matter with a direction to the petitioner to appear before the respondent No.3 on 24th November, 2020 along with all the relevant documents in support of his case and the respondent No.3 in turn is directed to dwell upon the representation and the documents submitted by the petitioner and after granting an opportunity of hearing to the petitioner in terms of section 126 (3) of the Act of 2003, will pass a self contained speaking order within a further period of fifteen days. 7. With the aforesaid, this petition stands allowed and disposed of with no order as to the cost. N.K. Gupta with Sanjay Sharma for petitioner; Vishal Tripathi , Government Advocate for respondent/State; Vivek Jain for respondents No.2 and 3.