JOINT ELECTRICITY REGULATORY COMMISSION Vs. UNION OF INDIA

JUDGEMENT

(1.) HON'ble the Chief Justice heard Mr. Parag Tripathi, learned Additional Solicitor General of India appearing with Mr. V. Karthik for the appellant; Mr. P. S. Raman, learned Advocate General appearing for respondents 3 to 16; Mr. T. Murugesan, learned Government Pleader (Puducherry) apearing for the second respondent and Mr. M. Devendiran, learned Senior Panel Counsel for the Central Government appearing for the first respondent.

(2.) THIS appeal seeks to challenge the order passed by a learned single Judge on the petition filed by respondents 3 to 16. Respondents 3 to 16 had challenged before the learned single Judge the tariff fixation by the appellant Joint Electricity Regulatory Commission, principally on two grounds. Firstly, the Joint Electricity Regulatory Commission can exercise its powers only on appointment of all the members, particularly from Puducherry, in terms of Section 83 of the Electricity Act, 2003 (for short 'the Act') and secondly, the determination of the tariff under Section 64 of the Act can take place only after framing appropriate Regulations under Section 61 of the said Act. As far as the submission on Section 83 of the Act is concerned, the learned single Judge has not given any finding and, therefore, we are not required to go into that aspect at this stage. Based on the submissions with respect to Section 61, the learned single Judge has taken the view in paragraph 6 of his order that before framing the regulations containing the terms and conditions for determination of the tariff, the appellant/third respondent cannot proceed with the issuance of public notice seeking the objections for determination of the tariff. In that view of the matter, the learned single Judge granted an interim stay as prayed for. At the same time, with a view that the tariff be fixed at the earliest, he fixed the petition for early hearing and it was supposed to be notified today. It appears that it has not been so notified.

(3.) THE appellant Regulatory Commission is aggrieved by this finding viz. , that before framing the Regulations containing the terms and conditions, the appellant Commission cannot proceed with the determination of the tariff. The submission is that the provision in Section 61 of the Act is not a condition precedent to what is provided in Section 64 of the Act. For that purpose, reliance is placed on the observations of the Apex Court in U. P. State Electricity Board Vs. City Board, Mussoorie reported in (1985) 2 SCC 16 and particularly paragraph 7 thereof. In that matter, the Court was concerned with the provisions of Sections 46 and 79 of the Electricity (Supply) Act, 1948 and in paragraph 7, the Supreme Court had in terms held that if there were any Regulations, the grid tariff should be fixed in accordance with such Regulations and nothing more. However, it was also held that the framing of Regulations under Section 79 (h) of the Act cannot be a condition precedent for fixing the grid tariff.