M/S Jharkhand Ispat Private Li vs Union Of India & Ors on 1 August, 2011

                                        1

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   W.P.(C ) No. 4097 of 2011
                               With
W.P.(C) Nos. 4073, 4080, 4086, 4094, 4090, 4085, 4089, 4114, 4092, 4107,
4103, 4108, 4104, 4099, 4132, 4163, 4110, 4245, 4190, 4088, 4087, 4197, 4223
of 2011

M/s Gautam Ferro Alloys (WPC 4097 of 2011)
M/s. Bihar Foundry & Castings ( WPC 4073 of 2011)
M/s. Atbir Industries Co. Ltd. ( WPC 4080 & 4086 of 2011)
M/s. Atbir Hitech Pvt. Ltd. ( WPC 4094 of 2011)
M/s. Bir Steels Pvt. Ltd. ( WPC 4090 of 2011)
M/s. Shivam Iron & Steel Co. ( WPC 4085 & 4089 of 2011)
M/s. Sundaram Ferrotech Pvt. Ltd. ( WPC 4114 of 2011)
M/s. Lall Iron & Steels Co. Ltd. ( WPC 4092 of 2011)
M/s. Naiyadih Hitech Pvt. Ltd. ( WPC 4107 of 2011)
M/s. Santpuria Alloys Pvt. Ltd. ( WPC 4103 of 2011)
M/s. Mongia Steel Ltd.       ( WPC 4108 of 2011)
M/s. Saluja Steel & Power ( WPC 4104 of 2011)
M/s. Balaji Electrosteels ( WPC 4099 of 2011)
M/s. Bishwanath Ferro Alloys ( WPC 4132 of 2011)
M/s. Puja TMT Plant Pvt. Ltd. ( WPC 4163 of 2011)
M/s. Jai Durga Iron (P) Ltd.( WPC 4110 of 2011)
M/s. Hanuman Alloys Pvt. Ltd. ( WPC 4245 of 2011)
M/s. MDA Projects India Pvt. Ltd. ( WPC 4190 of 2011)
M/s. Alok Steel Industries ( WPC 4088 of 2011)
M/s. Jharkhand Ispat Pvt. Ltd. ( WPC 4087 of 2011)
M/s. Hindustan Malleables ( WPC 4197 of 2011)
M/s. Bhuwania Associates Pvt. Ltd. ( WPC 4223 of 2011)

                           ...          ...                  Petitioners

                                 Versus
Union of India and others (in all cases )...                 Respondents


Coram :             HON'BLE THE ACTING CHIEF JUSTICE
                    HON'BLE MR. JUSTICE D.N.UPADHYAY

For the petitioner(s)      : Mr. N. K. Pasari
For U.O.I.                 : M/s. Mokhar Khan, Y. N. Mishra & T. N. Mishra
For the D.V.C.             : M/s. R.S. Mazumdar & S. Choudhary
                           ----

Order No. 2                                        Dated 1st August,2011.


                    Heard learned counsel for the parties.

                    Issue notice to the respondent no. 2 only as the learned

counsel for the respondents no.1 and 3 have already put in appearance and they

have already been served copies of the writ petitions.

                    Heard the learned counsel for the parties on the interim

relief.
                                             2

                      Learned counsel for the petitioners submitted that the

Damodar Valley Corporation ( DVC) , a company engaged in generation and

transmission of electricity did not apply for revision of tariff for long and

ultimately, the Central Electricity Regulatory Commission directed the DVC to

submit proposal for tariff upon which only on 26.10.2009 the DVC submitted a

petition for prescribing the tariff. It is submitted that       the petition filed was

defective. However, during pendency of that petition since 26.10.2009, all of a

sudden on 23.6.2011 by exercising powers under Regulation 5 of the Central

Electricity Regulatory Commission(Terms & Conditions of Tariff)(1st Amendment)

Regulation 2009, the Commission increased the tariff by the interim order. It is

submitted that the petitioners have challenged the validity and virus of the

Regulation 5(4) of the aforesaid Regulation, 2009 and have preferred the writ

petitions because of the violation of the principles of natural justice inasmuch as

the impugned order has been passed without notice to the petitioners, the

consumers and that too, of such interim nature fastening liabilities upon the

petitioners with retrospective effect. It is also submitted that the order impugned

is absolutely illegal and is in violation of the principles of natural justice as it is a

non speaking order and it contains no reasons for enhancing the tariff and that

too from April, 2009-14.

                      Learned counsel appearing for the DVC submitted that

except the petitioners, all others have started paying the tariff in accordance with

the order dated 23.6.2011. It is also submitted that it is clear from Regulation 5 of

the aforesaid Regulations 2009 that not only under the provisions of Regulation

5, but also as per section 94(2) of the Electricity Act, the Commission has the

power to pass an interim order with regard to the revision of tariff. Learned

counsel for the DVC further submitted that it is also specifically provided that in

case the    revision of tariff is not maintained finally, the amount paid by the

consumers can be adjusted against future liability for which DVC can be saddled

with interest which too can be adjusted against future liabilities               of the

consumers.
                                         3

                    It is also submitted     by the     learned counsel for the

respondent that after this interim order, the final order is required to be passed

within a period of 120 days.

                    Prima facie, there are facts which are not in dispute that a

petition for tariff revision was filed on 26.10.2099. Admittedly, no notice was

served upon the petitioners before passing the interim oder in spite of filing of

objection against tariff proposal submitted by the DVC as stated by the learned

counsel for the DVC that reply has already been filed, ( which is not correct

according to the learned counsel for the writ petitioners ) and further more, the

interim order has been passed and made effective retrospectively in the matter

which was pending before the Commission since 2009. If the issue if required

to be decided within 120 days, then, what was the reason for passing such an

order of increase of tariff from retrospective effect and, therefore, it requires

consideration.

                    In the aforesaid facts and circumstances, meanwhile, the

respondent DVC is restrained from recovering any amount in pursuance of the

impugned order dated 23.6.2011 from the petitioners, up to 24th August, 2011.

                    Requisites, etc. for issue of notice in two sets, returnable on

24.8.2011

, be filed by tomorrow upon which, process be issued and one set be

given to the learned counsel for the petitioners for issue of the notice by speed

post.

                                                (Prakash Tatia, ACJ.)


Ambastha/-                                     ( D.N. Upadhyay, J.)