{"id":229412,"date":"2002-06-14T00:00:00","date_gmt":"2002-06-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/voice-consumer-care-council-vs-state-of-tamil-nadu-on-14-june-2002"},"modified":"2017-11-25T02:21:04","modified_gmt":"2017-11-24T20:51:04","slug":"voice-consumer-care-council-vs-state-of-tamil-nadu-on-14-june-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/voice-consumer-care-council-vs-state-of-tamil-nadu-on-14-june-2002","title":{"rendered":"Voice Consumer Care Council vs State Of Tamil Nadu on 14 June, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
Voice Consumer Care Council vs State Of Tamil Nadu on 14 June, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDated: 14\/06\/2002 \nCoram: \nTHE HON'BLE MR. B. SUBHASHAN REDDY, CHIEF JUSTICE            \nand \nTHE HON'BLE MR. JUSTICE V. KANAGARAJ         \n\nW.P. No.23807 OF 2001 AND W.P. No.25219 OF 2001 AND W.P.No. 25220 of 2001 AND W.P. No.23807 of 2001           \n\nVOICE Consumer Care Council   \nRep. by its Founder Trustee\nNo.11, VOC Colony, 4th Street, \nCHENNAI \u2013 600 004.                                      \u2026       Petitioner\n\nVs.\n\n1.     State of Tamil Nadu,\n        rep. by Secretary to Government,\n        Energy Department,\n        Fort St. George,\n        CHENNAI \u2013 600 009.\n\n2.      Tamil Nadu Electricity Board,\n        rep. by its Chairman,\n        Anna Salai,\n        CHENNAI \u2013 600 002.                              \u2026       Respondents\n\n        Petition under Article 226 of the Constitution of India to issue Writ of\nDeclaration as stated therein.\n\n\n\nW.P. Nos.25219 and 25220 of 2001  \n\nCitizen, Consumer & Civic Action Group,\nRep. by its Trustee Mr. N.L. Rajah,\nNo.8, 4th Street, Venkateswara Nagar,\nAdyar, CHENNAI \u2013 600 020.                               \u2026       Petitioner in\n                                                                        both petitions\nVs.\n\n1.      The State of Tamil Nadu\n        rep. by the Secretary to Government,\n        Energy Department,\n        Fort St. George,\n        CHENNAI \u2013 600 009.\n\n2.      The Tamil Nadu Electricity Board,\n        rep. by its Chairman,\n        800, Anna Salai,\n        CHENNAI \u2013 600 002.\n\n3.      The Tamil Nadu Electricity Regulatory Commission,\n        rep. by its Secretary,\n        No.8, III Main Road, Seethamma Colony,  \u2026 Respondents in\n        CHENNAI \u2013 600 018.                                   both petitions.\n\n\n        Petitions under Article 226 of the Constitution of India to issue Writ\nof Certiorarified Mandamus and Writ of Mandamus as stated therein.\n\n\n\n\n!For petitioner in W.P.         :       Mr. Sriram Panchu, Sr.Counsel,\nNos.25219 and 25220                     for M\/s. T. Mohan\nof 2001\n\nFor Petitioner in W.P.          :       Mr. K.M. Vijayan, Sr. Counsel,\nNo.23807 of 2001                                for M\/s. La Law\n\n\n\n\nFor 1st Respondent in         :        Mr. R. Muthukumaraswamy,\nboth the petitions                      Addl. Advocate General,\n                                        assisted by Mrs. T. Kokilavani,\n                                        Govt. Advocate and Mr.\n                                        Vasudevan\n\nFor 2nd Respondent in           :       Mr. Vasudevan\nboth the W.Ps. \n\nFor 3rd Respondent in           :       Mr. K.S. Natarajan\nW.P. Nos. 25219 and  \n25220 of  2001\n\n: O R D E R \n<\/pre>\n
THE HON’BLE THE CHIEF JUSTICE      <\/p>\n
           At issue, is the constitutionality of revision of power tariff by
\n      the State of Tamil Nadu.  Tamil Nadu Electricity Board prepares Budget
\n      estimates every year and they are placed before the State Legislature.
\n      For  the  year  2001 \u2013 2002 too, such Budget estimate was prepared and
\n      was placed before the State  Legislature.    The  revenue  gap,  after
\n      compiling,  between  the  receipts  and  expenditure,  was  arrived at
\n      Rs.2,747.59 Crores.  Responding to the same, the Government had issued
\n      G.O.   Ms.No.95,  dated  28.11.2001  revising  power  tariff  but   on
\n      representation being made, the escalation in power tariff was slightly
\n      reduced by later  G.O.    Ms.  No.96, dated 5.12.2001, making the said
\n      modification applicable only to domestic consumers.  G.O.  Ms.   No.95
\n      became effective from 1.12.2001  as modified by G.O.  Ms.  No.96.  The
\n      above three writ petitions are pro bono publico.  First in order is
\n      W.P.  No.23807 of 2001 followed by W.P.  Nos.25219 and 25220 of 2001.
\n      While the power to enhance the power tariff is in question in W.P.
\n      Nos.23807 and 25219 of 2001, the relief sought for in W.P.   No  25220
\n      of  2001 is quite different, as, in the said Writ Petition, a Mandamus
\n      is sought for to direct the first respondent Government to convene the
\n      Selection Committee to select and  appoint  the  Chairperson  and  the
\n      Members  of  the  Tamil  Nadu State Electricity Regulatory Commission.
\n      Though in the first writ petition, the challenge initially was to G.O.
\n      Ms.No.95, an amendment was sought to challenge G.O.  Ms.    No.96  and
\n      the said amendment petition was allowed.\n<\/p>\n
           2.      Mr.  K.M.  Vijayan, learned senior counsel, appeared  for
\n      the petitioner in  W.P.    No.23807  of 2001 while Mr.  Sriram Panchu,
\n      learned  senior  counsel,  appeared  for  the  petitioners  in   other
\n      petitions viz., W.P.    Nos.25219  and  25220  of 2001.  The State was
\n      defended by Mr.  R.   Muthukumaraswamy,  learned  Additional  Advocate
\n      General.  Mr.   K.S.    Natarajan,  learned  counsel, appeared for the
\n      State Regulatory Commission.    Mr.    Vasudevan,   learned   counsel,
\n      appeared for the Tamil Nadu Electricity Board.\n<\/p>\n
           3.      In first two writ petitions, the questions raised are not
\n      only regarding the power of  the  State  Government  to  revise  power
\n      tariff  but  also  regarding  the  quantum  of  escalation,  as  being
\n      arbitrary and unreasonable.  But during the arguments, both M\/s.  K.M.
\n      Vijayan and Sriram Panchu, learned senior counsel, gave up  the  issue
\n      relating  to  the  quantum  of escalation of power tariff and confined
\n      their arguments on the power and jurisdiction of the State  Government
\n      in revising  power  tariff.    The  learned senior counsel submit that
\n      after the enactment of Electricity Regulatory Commissions Act, 1998 by
\n      the Parliament, the State Government ceased to have any  role  in  the
\n      matter  of  revision  of  tariff for the user of electrical energy and
\n      that the said power is vested only with State  Electricity  Regulatory
\n      Commission  and  as such, the impugned Governmental Orders are non est
\n      in  law  and  the  power   tariff   revision   ordered   therein,   is
\n      unenforceable.\n<\/p>\n
           4.      Mr.  K.S.  Natarajan, learned counsel appearing  for  the
\n      Tamil  Nadu State Electricity Regulatory Commission, supports the said
\n      argument and submits that the Commission came into force and had  been
\n      functional  ever  since  July  1999 and that the impugned Governmental
\n      Orders G.O.  Ms.  Nos.95 and 96 are fit to be struck down.\n<\/p>\n
           5.      Countering the said arguments, Mr.  R.  Muthukumaraswamy,
\n      learned Additional Advocate General, appearing for the State of Tamil
\n      Nadu, submits that even though the Parliament had enacted Central  Act
\n      14  of  1998, providing for the constitution of both Central and State
\n      Regulatory Commissions, the State  Electricity  Regulatory  Commission
\n      did  not come into force and had been non-functional, and as there was
\n      huge revenue deficit, as is evident from the  statement  submitted  by
\n      the Tamil Nadu Electricity Board, it was imperative on the part of the
\n      State  Government to effect the revision without further loss of time,
\n      as, making the Commission functional would entail in further delay and
\n      that the State Government was of the considered view that any  further
\n      delay  would  affect  the  public interest because of the depletion of
\n      essential revenue source.  The  learned  Additional  Advocate  General
\n      also  submits  that  there is no repugnancy in the action of the State
\n      Government as the repugnancy arises only when  the  State  Electricity
\n      Regulatory  Commission starts discharging its functions effectively as
\n      provided by the Central Act 14 of 1998 and what is to be seen  is  the
\n      repugnancy ‘in fact’ and not by mere enactment of Central Act on the
\n      same legislative field.  Mr.  Vasudevan, learned counsel appearing for
\n      the Electricity Board, adopted the argument of the learned  Additional
\n      Advocate General.\n<\/p>\n
           6.      The  power  tariff  in  the State of Tamil Nadu was being
\n      revised from time to time invoking the provisions of  the  Tamil  Nadu
\n      Revision  of  Tariff  of  Supply  of  Electricity  Energy  Act,  1978,
\n      hereinafter referred to as the State Act.  Legislation  on  the  power
\n      tariff  and  revision  thereof  before  the  said Act is not relevant.
\n      Section 3 of the State Act contains a non obstante  clause  empowering
\n      the Government to fix the tariff rates payable to the Tamil Nadu State
\n      Electricity  Board,  hereinafter  referred  to  as  T.N.E.B.,  by  any
\n      consumer, as specified in the Schedule thereto.    Section  4  thereof
\n      confers  powers  on the State Government to amend the tariff mentioned
\n      in the Schedule from time to time.  The  said  provision  reads,  ‘the
\n      State Government may, after taking into account the cost of production
\n      of   energy   and   such  other  matters  as  may  be  prescribed,  by
\n      notification, amend the provisions of the Schedule to this Act’.\n<\/p>\n
      The  State  Act  was  enacted  tapping the Entry 38 of Concurrent List
\n      (List III) of Schedule VII of the Constitution  and  it  received  the
\n      assent  of  the  President  on 23.2.1979, was gazetted on 3.3.1979 and
\n      brought  into  effect  retrospectively  with  effect  from   1.3.1978.
\n      Exercising  the  power  under  Section  4  of the State Act, the State
\n      Government had been revising the tariff from time  to  time  depending
\n      upon the  exigencies  to  do  so.  The impugned Governmental Orders in
\n      G.O.  Ms.Nos.95 and 96 have been issued in exercise of  Section  4  of
\n      the State Act making upward revision of power tariff.\n<\/p>\n
           7.      The   Electricity   Regulatory   Commission   Act,  1998,
\n      hereinafter referred to  as  the  Central  Act,  was  enacted  by  the
\n      Parliament  and the same is traced to the same legislative Entry 38 of
\n      the Concurrent List.  The Central Act came into force with effect from
\n      25.4.1998.  Article 254 of Indian Constitution reads,<\/p>\n
      “254.  Inconsistency between laws made by Parliament and laws made  by
\n      the Legislatures of States.- (1) If any provision of a law made by the
\n      Legislature  of a State is repugnant to any provision of a law made by
\n      Parliament which Parliament is competent to enact, or to any provision
\n      of an existing law with respect to one of the matters enumerated in
\n      the  Concurrent  List,  then, subject to the provisions of clause (2),
\n      the law made by Parliament, whether passed before  or  after  the  law
\n      made by the Legislature of such State, or as the case
\n      may be, the existing law, shall prevail and the law made by the
\n      Legislature of the State shall, to the extent of the repugnancy,
\n      be void.\n<\/p>\n
      (2)  Where a law made by the Legislature of a State
\n      with respect to one of the matters enumerated in the Concurrent
\n      List contains any provision repugnant to the provisions of an
\n      earlier law made by Parliament or an existing law with respect
\n      to that matter, then, the law so made by the Legislature of such
\n      State shall, if it has been reserved for the consideration of the
\n      President and has received his assent, prevail in that State:\n<\/p>\n
      Provided  that  nothing  in  this clause shall prevent Parliament from
\n      enacting at any time any law with respect to the same matter including
\n      a law adding to, amending, varying or repealing the law so made by the
\n      Legislature of the State”.\n<\/p>\n
      Basing  upon  the  said  Constitutional  provision, the learned senior
\n      counsel appearing for the petitioners submit that on the advent of the
\n      Central Act with effect from 25.4.1998, the State ceased to  have  the
\n      power  to  invoke  Section 4 of the State Act and that the revision of
\n      power tariff in Tamil Nadu can now be made  only  by  the  Tamil  Nadu
\n      Electricity   Regulatory   Commission,   hereinafter  referred  to  as
\n      T.N.E.R.C.  The learned Additional Advocate General  submits  that  in
\n      spite of enactment of Central Act, the power still vested in the State
\n      Government as  the  T.N.E.R.C.    did  not  become  functional with no
\n      Chairman and even two Members not having taken oath as contemplated in
\n      sub-Section (4) of Section 19 of the Central Act, which reads,  ‘every
\n      member of the State Commission shall, before entering upon his office,
\n      make  and  subscribe  to an oath of office and of secrecy in such form
\n      and in such manner and before such authority as may be prescribed.’<\/p>\n
      If  the Central Act is operative, then the State Act cannot be invoked
\n      and on that count, the impugned G.Os.  fall to ground because  of  the
\n      Parliamentary   supremacy   provided   in   Article  254  (1)  of  the
\n      Constitution.  Sub-Article (2) of Article 254 is inapplicable for  the
\n      reason  that  the  State did not enact any law superceding the Central
\n      Act.  We now proceed to consider as to whether the impugned G.Os.  are
\n      repugnant to Section 29 of the Central Act, which reads,<\/p>\n
      29.  Determination   of   tariff   by   State   Commission.     \u2013  (1)
\n      Notwithstanding anything contained in any other law,  the  tariff  for
\n      intra-State  transmission  of electricity and the tariff for supply of
\n      electricity, grid, wholesale, bulk or retail, as the case may  be,  in
\n      State  (hereinafter  referred to as the ‘tariff’), shall be subject to
\n      the provisions of this Act and the tariff shall be determined  by  the
\n      State  Commission  of  that State in accordance with the provisions of
\n      this Act.\n<\/p>\n
           8.      Out  of  the  judgments cited at Bar, seven judgments are
\n      relevant for discussion and they are (i) KULWANT KAUR AND OTHERS v.
\n      GURDIAL SINGH MANN<\/a> (2001 (4) S.C.C.  262), (ii) BELSUND SUGAR
\n      CO.  LTD v.  STATE OF BIHAR AND OTHERS (1999 (9) S.C.C.  620), (iii)
\n      ELECTION COMMISSION OF INDIA v.  Dr.  SUBRAMANIAM SWAMY<\/a>
\n      (1996 (4) S.C.C.  104), (iv) INDIAN ALUMINIUM CO.  LTD v.
\n      KARNATAKA ELECTRICITY BOARD<\/a> (1992 (3) S.C.C.  580), (v)
\n      SHABBIR v.  STATE (AIR 1965 Allahabad 97), (vi) WATRAP S.
\n      SUBRAMANIA AIYAR v.  THE UNITED INDIA LIFE INSURANCE CO.
\n      LTD.  (LV  M.L.J.    385)  and  (vii)  a  decision  of this Court W.P.
\n      No.3121 of 1999.  While the decisions (i) and (vi) supra are cited  by
\n      the  learned  senior  counsel  for  the  petitioners,  the rest of the
\n      decisions are cited by the learned Advocate General.  The decision  of
\n      the Supreme  Court  in  KULWANT KAUR AND OTHERS v.  GURDIAL SINGH MANN<\/a>
\n      (cited (i) supra) deals  with  the  Parliamentary  supremacy  whenever
\n      there  is  a  clash  between  the  Central  legislation  and the State
\n      legislation on the topics of legislation in Concurrent List.   In  the
\n      said  case,  Section 41 of the Punjab Courts Act, 1918, was held to be
\n      repugnant to Section 100 of the Code of Civil Procedure as amended  in
\n      1976.   But  the  learned Additional Advocate General submits that the
\n      situation in the instant case is quite different and that the facts of
\n      this case are more closer to the dicta laid down by the Supreme  Court
\n      in the decision  in  BELSUND  SUGAR  CO.    LTD v.  STATE OF BIHAR AND
\n      OTHERS (cited (ii) supra).  In that decision, the provision  of  Bihar
\n      Agricultural Produce Markets Act, 1960 fell for consideration.  The
\n      argument  was  that a particular provision of the State Act empowering
\n      the levy  of  market  fee  was  repugnant  to  the  Bihar  Sugar  Cane
\n      (Regulation  of  Supply  and  Purchase)  Act, 1981 read with Sugarcane
\n      (Control) Order, 1966, and Sugar (Control) Order, 1966,  issued  under
\n      the Essential  Commodities  Act.  Such question does not arise in this
\n      case.  But the learned Additional Advocate General draws our attention
\n      to paragraph 169 of the said judgment and submits that the  repugnancy
\n      must exist  ‘in  fact’  and  that  inasmuch  as the T.N.E.R.C.  is not
\n      functioning, there is  no  repugnancy  ‘in  fact’  and  as  such,  the
\n      impugned G.Os.  are sustainable.  In INDIAN ALUMINIUM CO.  LTD
\n      v.  KARNATAKA ELECTRICITY BOARD<\/a> (cited (iv) supra), the point was
\n      as  to  whether  Electricity (Supply) (Karnataka Amendment) Act, 1981,
\n      was repugnant to Industries (Development and Regulation) Act, 1951,  a
\n      Central legislation.    While reiterating the Parliamentary supremacy,
\n      the Supreme Court held that in deciding the  question  of  legislative
\n      competence,  the Constitution should not be construed with a narrow or
\n      pedantic approach and as a mere law and it should be  construed  as  a
\n      machinery  by  which  laws  are made and such interpretation should be
\n      made broadly and liberally and that the Entries  in  the  Constitution
\n      only demarcate the legislative field of the respective legislature and
\n      do not  confer  legislative power as such.  In the said case, in spite
\n      of the tripartite agreement between the Karnataka  Electricity  Board,
\n      Karnataka  Government and the Indian Aluminium Company, specifying the
\n      electric tariff for a stipulated period, State amendment  was  brought
\n      forth   increasing  the  tariff  and  that  was  questioned  as  being
\n      unconstitutional and repugnant to the Industries (Development and
\n      Regulation) Act,  1951.    Firstly,  the  matter was dealt with by the
\n      Karnataka High Court  and  it  upheld  the  contention  of  the  State
\n      Government   that   even   though   Section  18-G  of  the  Industries
\n      (Development & Regulation) Act empowered  the  Central  Government  to
\n      issue notification on the subject, as no such notification was issued,
\n      the State Act was intra vires the Constitution.  The said statement of
\n      law made by the High Court was upheld by the Supreme Court.\n<\/p>\n
           9.      In our Constitutional scheme, the Parliamentary supremacy
\n      provided in Article 254 of Constitution is well settled.  A reading of
\n      Central Act makes it obvious that the Parliament  did  not  intend  to
\n      impose  on  the  State  Governments  to  compulsorily constitute State
\n      Electricity Regulatory Commission.  The language employed in  Sections
\n      3 and 17 of the Central Act makes the above legal position very clear.
\n      Section 3 of the Central Act reads,\n<\/p>\n
      3.  Establishment and incorporation of Central Commission.
\n      \u2013 (1) The Central Government shall, within three months from
\n      the date of the commencement of this Act, by notification in the
\n      Official Gazette, establish a body to be known as the Central
\n      Electricity Regulatory Commission to exercise the powers
\n      conferred on, and the functions assigned to it, under this Act.  \u2013<\/p>\n
      (2) to (5) \u2026\u2026\u2026\u2026\u2026\u2026”\n<\/p>\n
      The word ‘shall’ is very significant, which makes it obligatory on the
\n      Central Government to constitute Central Electricity Regulatory
\n      Commission per force.  What is more, even a timeframe of three months
\n      reckoning from the date of commencement of the Act has been stipulated
\n      and  there  is  no option for the Central Government but to constitute
\n      the Central Commission and it has been so constituted.   In  contrast,
\n      Section 17 dealing with the State Electricity Regulatory Commission is
\n      worded differently and not in a mandatory language but it is optional.
\n      Section 17 reads,
\n      “17.  Establishment and incorporation of State Commission.
\n      \u2013 (1) The State Government may, if it deems fit, by notification
\n      in the Official Gazette, establish, for the purposes of this Act, a
\n      Commission for the State to be known as the (name of the
\n      State) Electricity Regulation Commission.\n<\/p>\n
      (2) to (9) \u2026\u2026\u2026..”\n<\/p>\n
      The  words, ‘the State Government may, if it deems fit’, do not impose
\n      any  obligation  on  the  State  Government  to  constitute  a   State
\n      Commission and  it is only an enabling provision.  There cannot be any
\n      enforcement of an enabling provision.  But the State of Tamil Nadu has
\n      opted to constitute the State Commission  and  T.N.E.R.C.    has  been
\n      constituted by  a  notification  issued  vide  G.O.   Ms.No.58, Energy
\n      Department, dated 17.3.1999.\n<\/p>\n
           10.     Now, the lis is in a narrow compass as to whether the
\n      Commission became functional in terms of the Central Act so as to oust
\n      the  power  and  jurisdiction  of the State Government to exercise the
\n      power under Section 4 of the State Act.\n<\/p>\n
           11.     G.O.  Ms.No.58, Energy Department, dated 17.3.1999 was
\n      issued by  the  State  of Tamil Nadu constituting T.N.E.R.C.  with Mr.
\n      K.  Venkatesan, I.A.S.    (Retd.)  as  Chairperson  and  M\/s.     E.C.
\n      Arunachalam, Chief Engineer (Retd.) and Mr.  M.G.  Devasagayam, I.A.S.
\n      (Retd.) as Members.   But the Chairperson and Mr.  Devasagayam refused
\n      to honour the assignments.  Only Mr.  Arunachalam assumed charge as  a
\n      Member in July, 1999.    Later,  one  Mr.    D.S.   Hanumantha Rao was
\n      appointed as a Member, who took charge in September,  1999.    But  no
\n      Chairperson has  been  appointed.   While it is true that they did not
\n      take oath of allegiance as contemplated by sub-Section (4) of  Section
\n      19  of  the Central Act, they cannot be found fault with, as the State
\n      Government did not frame Rules in that regard.    Section  57  of  the
\n      Central  Act  confers power on the State Government to frame the Rules
\n      and clause (b) of sub-Section (2)  of  Section  57  makes  a  specific
\n      reference  for  framing  the Rule regarding the form and the manner of
\n      and the authority before whom the oath of office and of
\n      secrecy should be subscribed.  The said clause runs, “57.    Power  of
\n      State Government to make rules.  \u2013<\/p>\n
      (1) \u2026.\n<\/p>\n
      (2) In particular and without prejudice to the generality of the
\n      foregoing power, such rules may provide for all or any of the
\n      following matters, namely:-\n<\/p>\n
      (a) \u2026.\n<\/p>\n
      (b) the form and the manner in which and the authority before
\n      whom the oath of office and of secrecy should be subscribed
\n      under sub-Section (4) of Section 19.”\n<\/p>\n
      For acceding to the contention of the State Government that since two
\n      members have not taken oath as contemplated under Section  19  (4)  of
\n      the Central Act and as such their presence in the Commission has to be
\n      just  ignored,  the Government had to perform its statutory obligation
\n      of framing the Rule in that regard.  In the absence of  framing  of  a
\n      Rule  by  the  State  Government  in  spite  of  the Rule-making power
\n      conferred in that regard, it cannot lie in  the  mouth  of  the  State
\n      Government  to  contend  that two members have not been functioning in
\n      accordance with the Act.    Mr.    R.      Muthukumaraswamy,   learned
\n      Additional Advocate General, cites the judgment of a Division Bench of
\n      Allahabad High Court in SHABBIR v.  STATE (cited (v) supra) in support
\n      of  his  argument that in the absence of subscribing oath, the members
\n      cannot be deemed to be  functioning.    But  the  ratio  of  the  said
\n      judgment is  inapplicable to the instant case.  There a Division Bench
\n      of the Allahabad High Court was dealing with the  provision  contained
\n      in Article 219 of the Indian Constitution, which specifically deals
\n      with subscribing oath.  Article 219 reads thus,<\/p>\n
      “219.  Oath or affirmation by Judges of High Courts .  \u2013<\/p>\n
      Every person appointed to be a Judge of a High Court shall,
\n      before enters upon his office, make and subscribe before the
\n      Governor of the State, or some person appointed in that behalf
\n      by him, an oath or affirmation according to the form set out for
\n      the purpose in the Third Schedule.”\n<\/p>\n
      The  form  has  been  set  out  in  the  Third Schedule and by a later
\n      Constitutional Amendment  Act,  the  form  was  changed  and  in  that
\n      context,  adjudication  was  made  by the Allahabad High Court holding
\n      that before  entering  office,  a  Judge  has  to  subscribe  oath  in
\n      accordance  with  the  form  set out and in that case, even though the
\n      oath was taken according to the old format, it was held that that  was
\n      a mere  irregularity.    In the Central Act, the procedure relating to
\n      taking oath is left to the Rule-making authority and that is the State
\n      Government in so far as the  State  Commission  is  concerned  and  as
\n      already  stated  above, the State Government has failed to frame Rule.
\n      The judgment of  the  Allahabad  High  Court  referred  to  above  is,
\n      therefore, not  of  any  help  to  the State Government.  On the other
\n      hand, the argument of Mr.Sriram Panchu,  the  learned  senior  counsel
\n      appearing  for  some  of the petitioners, is that the State Government
\n      having failed to frame the Rules cannot turn back and  take  advantage
\n      of its wrong and the judgment cited by him reported in
\n      WATRAP S.  SUBRAMANIA AIYAR v.  THE UNITED INDIA LIFE
\n      INSURANCE CO.  LTD.    (cited (vi) supra), is acceptable.  That apart,
\n      the two members namely M\/s.E.C.  Arunachalam and D.S.  Hanumantha Rao
\n      convened five meetings.  They had also framed Conduct of Business
\n      Regulations  in exercise of the powers under Section 58 of the Central
\n      Act and in their First Meeting on 8.3.2000, approved  for  publication
\n      of the  said  Regulations  in  the  Official Gazette.  Pursuant to the
\n      same, the said Business Regulations were gazetted on 17.5.2000.\n<\/p>\n
      –    Second meeting was held on 20.6.2000.  The decision taken
\n      was to accept the  financial  assistance  from  M\/s.    Power  Finance
\n      Corporation Ltd  (PFC) and authorising D.S.  Hanumantha Rao to execute
\n      the  agreements,  deeds  and  other  relevant  documents  with   other
\n      financial institutions.\n<\/p>\n
           –       The third meeting was held on 3.10.2000 to  fill  up  the
\n      post of  Secretary  in  T.N.E.R.C.  under Section 21 (1) of the E.R.C.
\n      Act, 1998.  It is mentioned therein that T.N.E.R.C.   was  constituted
\n      by the  Government  vide  G.O.  Ms.No.58 Energy (A1) Department, dated
\n      17.3.1999, that members have assumed charge during July and  September
\n      1999,  that  the  Commission  started  functioning with skeleton staff
\n      sanctioned by  the  Government  and  framed  various  Regulations  and
\n      gazetted  them  also and considering the increase in the work, filling
\n      up the post of Secretary was sought for and the
\n      name of R.    Balasubramanian,  Executive  Engineer,  T.N.E.B.      on
\n      deputation to T.N.E.R.C.  was suggested.\n<\/p>\n
           –       The fourth meeting was held on 14.11.2000 reiterating the
\n      Resolution to  accept  the  financial  assistance  from  P.F.C.    for
\n      procurement of computer based projection equipment  and  to  authorise
\n      D.S.  Hanumantha Rao to sign the necessary papers.\n<\/p>\n
           –       The  fifth  meeting  was  held   on   16.3.2001   seeking
\n      upgradation  of  the post of Secretary from that of Executive Engineer
\n      to Superintending Engineer and to continue  Mr.    Balasubramanian  on
\n      promotion as  Superintending  Engineer as Secretary of T.N.E.R.C.  Mr.
\n      Balasubramanian has  been  promoted  to  the  post  of  Superintending
\n      Engineer with effect from
\n      4.12.2000 vide (Permanent) B.P.    (Ch)  No.301,  Secretariat  Branch,
\n      dated 4.12.2000.    It  has  been decided to allow the following perks
\n      available to his grade in the Tamil Nadu Electricity Board, i.e.    as
\n      Superintending Engineer,  T.N.E.R.C.   from the date of his joining as
\n      Superintending Engineer.\n<\/p>\n
      1.   Providing vehicle facility from his residence to office and back;\n<\/p>\n
      2.   Purchase of one Tamil and one English newspaper at his residence;\n<\/p>\n
      3.   To  pay  his  residence  telephone  bill  to  the extent used for
\n      official purpose.  After this, there is no meeting of T.N.E.R.C.\n<\/p>\n
      12.          In view of the above, we are unable to countenance the
\n      argument of Mr.R.Muthukumaraswamy, learned Additional Advocate
\n      General, that  existence  of  the  above  two  members  in  the  State
\n      Commission can  be  treated  as  non  est  in  law.    The Doctrine of
\n      Necessity relied upon by the learned Additional Advocate  General  and
\n      the decision  cited  by  him  in  ELECTION COMMISSION OF INDIA v.  Dr.
\n      SUBRAMANIAM SWAMY<\/a> (cited (iii) supra) have got no relevance in so  far
\n      as this  case  is  concerned.    The  Supreme Court has propounded the
\n      Theory of Doctrine of Necessity in a different context.\n<\/p>\n
      13.  If we stop here, then the writ petitions are necessarily to be
\n      allowed,  which  would  result  in  the  quashing  of   the   impugned
\n      notifications.   But there is another aspect to the matter and that is
\n      the absence of the Chairperson.  Learned Additional  Advocate  General
\n      submits  that even if the members can be deemed to be functioning, the
\n      Commission had been non- functional and particularly in the context of
\n      revision of power tariff.  The State Electricity Regulatory Commission
\n      shall consist of a Chairperson and two Members.   There  cannot  be  a
\n      Commission without  a  Chairperson.    Indisputably, there had been no
\n      Chairperson ever  since  the  constitution  of  T.N.E.R.C.    as   Mr.
\n      Venkatesan,  who  was  appointed as Chairperson, has refused to assume
\n      the office and relinquished his appointment.  It  is  ununderstandable
\n      as to why no effort has been made by either the previous Government or
\n      the present Government to appoint a Chairperson.  The
\n      successive Governments ought to know that the Commission cannot
\n      function in terms  of  Central  Act  for  realising  the  Objects  and
\n      Intendment  of  the  Act  unless  the Chairperson is appointed, as the
\n      Chairperson is the Chief Executive of the State Commission.  While  it
\n      was  open  to  the  State  Government  not  to  constitute  the  State
\n      Commission, as already stated above that Section 17 of the Central Act
\n      is only an enabling provision, but having constituted  the  Commission
\n      in  exercise  of the power under Section 17 of the Central Act, it was
\n      incumbent upon the State Government to see that T.N.E.R.C.   functions
\n      effectively.   Not  only there is in-action on the part of the present
\n      Government in this regard but the previous Government also was a party
\n      to in-action.  It is  interesting  to  refer  to  the  action  of  the
\n      previous  Government  in  exercising  the  power  of revision of power
\n      tariff culminating  in  G.O.    Ms.No.3,  Energy   Department,   dated
\n      7.1.2000.  In the Note of the Energy (A-1) Department, dated 3.5.1999,
\n      it was noticed that even though
\n      G.O.   Ms.No.58,  dated  17.3.1999  was issued constituting Tamil Nadu
\n      State Electricity Regulatory Commission with  a  Chairperson  and  two
\n      members for the purpose of rationalisation of electricity tariff etc.,
\n      the Chairperson and two Members have not taken oath of office till the
\n      said  date and even if the Commission assumes office, it may take some
\n      time to settle down and take up the work assigned and inasmuch as  the
\n      last revision of electricity tariff was ordered in July 1998 and there
\n      was  necessity  to increase the said tariff in view of the gap between
\n      revenue and expenditure, the Law Department’s clarification was sought
\n      for was as to whether it is legal for the State Government to take  up
\n      revision  of  electricity  tariff  based on the proposal of Tamil Nadu
\n      Electricity Board  as  was  done  on  earlier  occasions.    The   Law
\n      Department, by its reply note dated 10.5.1999, has clarified the legal
\n      position that the Commission cannot function if the Chairperson and
\n      Members have not assumed the charge and only when they assume charge,
\n      the question of their functioning will come into effect and sought for
\n      information in that regard from the Energy Department.  The Energy
\n      Department,   by   its   note  dated  12.5.1999,  clarified  that  the
\n      Chairperson and other two Members have not taken oath of office so far
\n      then and hence, the Chairperson and other two Members have not assumed
\n      charge so far and no office of S.E.R.C.  has started functioning.   By
\n      its Note dated 9.6.1999, the Law Department opined that merely because
\n      the Regulatory Commission has been constituted, it cannot be concluded
\n      that  the  State  Government is deprived of its power to discharge the
\n      functions  till   the   Regulatory   Commission   starts   functioning
\n      effectively and  as  per the requirements of the Act.  This was on the
\n      premise that the Regulatory Commission had  not  started  functioning;
\n      then  the opinion given was that it is open to the State Government to
\n      take up the revision of electricity tariff based on the proposal
\n      of T.N.E.B.  as was done hitherto.  This Note was accepted by Energy
\n      Department on  19.6.1999.    On  24.9.1999,  the Energy Department had
\n      again sought for a clarification from the Law Department stating  that
\n      even though  one  Mr.    K.Venkatesan was appointed as the Chairman of
\n      S.E.R.C., he has conveyed his inability to take up the post on  health
\n      grounds but members M\/s.    E.C.  Arunachalam and D.S.  Hanumantha Rao
\n      have assumed their office on 1.7.1999 and 22.9.1999  respectively  and
\n      the  Commission  has also found a rental premises at Alwarpet, Chennai
\n      and started its office with  skeleton  staff  taken  from  Tamil  Nadu
\n      Electricity  Board  on  deputation  and  as  to  whether  in  the said
\n      circumstances, the Government could embark on
\n      exercise for revision of  electricity  tariff.    But  by  Note  dated
\n      26.9.1999,  the  Law  Department  has sought for some more particulars
\n      from the Energy Department and the Energy Department having given  the
\n      same  on  27.6.1999,  the Law Department, by its Note dated 6.10.1999,
\n      has opined that the process of constitution of  State  Commission  has
\n      not  reached  its  completion  and  therefore,  the  requirement as to
\n      notification in the official gazette regarding the Head Office has not
\n      been carried out and apart from
\n      this unfulfilled statutory requirement, there is no Chairman for the
\n      Commission and in the circumstances, previous Note holds good  and  it
\n      is  open  to  the  Government  to  effect  revision  of tariff rate as
\n      effected hitherto.\n<\/p>\n
      The  result  is  the  revision of power tariff effected by issuance of
\n      G.O.  Ms.No.3, Energy Department, dated 7.1.2000  referred  to  supra.
\n      Of  course,  the  present  Government  has  repeated  the  feat of its
\n      predecessor by issuing the impugned G.Os.  on the  same  analogy  that
\n      since T.N.E.R.C.  is not
\n      functional without their being Chairperson and a Member, treating one
\n      Member as not conforming to the mandatory requirement of  the  Central
\n      Act to discharge the functions of the State Commission.  We are unable
\n      to  appreciate the lethargic attitude of the successive Governments in
\n      not giving full effect to the functioning of T.N.E.R.C.  But  on  that
\n      count, we  cannot  set  at naught the impugned Governmental Orders.  A
\n      Full Bench judgment dated 6.4.1999 rendered  by  this  Court  in  W.P.
\n      No.3121  of  1999, cited by the learned Additional Advocate General is
\n      relevant in the context of this case.  In the said case,  arising  out
\n      of Administrative Tribunals Act, 1985, the writ
\n      petition was entertained by this  Court  in  the  matter  relating  to
\n      service,  which  has  to be dealt with by the Administrative Tribunal.
\n      The Administrative Tribunal was having only  a  single  Administrative
\n      Member  and  in that context, it was held that as the Tribunal was not
\n      functional, the High Court was having jurisdiction  to  entertain  the
\n      writ petition  under Article 226 of the Constitution of India.  It may
\n      be relevant to point out that in view of Constitution (42nd) Amendment
\n      Act, 1976, Article 323-A was introduced investing the Parliament  with
\n      power  of  enacting  a  law  for  the  Constitution  of some Tribunals
\n      including Administrative Tribunal and the Supreme Court in
\n      L.  CHANDRAKUMAR v.  UNION OF INDIA (AIR 1997 S.C.  1125), held
\n      that   the   service   matter   should   first  be  filed  before  the
\n      Administrative Tribunal and  only  then,  the  High  Courts  would  be
\n      entitled  to  entertain  the  writ  petition  under Article 226 of the
\n      Constitution of India at the instance of the aggrieved party.  Similar
\n      is the situation in the instant case.  While there
\n      had been in-action on the part of the successive  Governments  in  not
\n      making T.N.E.R.C.  functional by exercising the powers conferred under
\n      the  Central  Act,  we  cannot  ignore the public interest involved as
\n      there had been necessity to revise the tariff of electrical energy  by
\n      upward revision to make the electricity supply financially viable.\n<\/p>\n
           14.     In view of what is stated supra, we uphold  the  impugned
\n      G.O.  Ms.   Nos.95 and 96, dated 28.11.2001 and 5.12.2001 respectively
\n      and dismiss the W.P.  Nos.23807 and 25219 of  2001.    We  allow  W.P.
\n      No.25220  of  2001  and  direct  the  State  Government  to  make  the
\n      T.N.E.R.C.  fully functional to act in  consonance  with  the  Central
\n      Act.\n<\/p>\n
           15.     We  make it clear that future power revision tariff shall
\n      be done only by T.N.E.R.C.  The first respondent shall frame the Rules
\n      under Section 57 of the Central Act within a period of  15  days  from
\n      today.  To avoid unnecessary litigation in future, the Chairperson and
\n      Member,  who  are  said  to have been appointed just the other day, be
\n      directed to subscribe oath in accordance with the Rule to be framed as
\n      directed above.\n<\/p>\n
           16.     With regard to  Business  Regulations,  which  have  been
\n      framed  by  two  Members,  we  need to clarify that we referred to the
\n      framing of the said Regulations only in the context of the  effect  of
\n      the erstwhile Members not subscribing to oath and to point out that in
\n      the absence of the framing of statutory Rules by the State Government,
\n      assumption of charge by the said members and continuing to function as
\n      such, cannot  be  found  fault  with.    T.N.E.R.C.,  after it becomes
\n      functional as directed above, shall look into the aspect as to whether
\n      Business Regulations already framed and gazetted should  be  re-issued
\n      or not.  In the facts and circumstances of the case, we
\n      direct the parties to bear their own costs.\n<\/p>\n
                                                   (B.S.R., CJ) (V.K., J)
\n      bh\/
\n                                                           14.06.2002<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Voice Consumer Care Council vs State Of Tamil Nadu on 14 June, 2002 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 14\/06\/2002 Coram: THE HON’BLE MR. B. SUBHASHAN REDDY, CHIEF JUSTICE and THE HON’BLE MR. JUSTICE V. KANAGARAJ W.P. No.23807 OF 2001 AND W.P. No.25219 OF 2001 AND W.P.No. 25220 of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-229412","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nVoice Consumer Care Council vs State Of Tamil Nadu on 14 June, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/voice-consumer-care-council-vs-state-of-tamil-nadu-on-14-june-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Voice Consumer Care Council vs State Of Tamil Nadu on 14 June, 2002 - 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