Dismissed

Vinay Tilokchand Karnavat v. State of Maharashtra and Others

Bombay HC27 Oct 2016WP/4336/2015

Case brief

AI extract

What is this about?

The petitioner challenged tariff fixation by the Maharashtra Electricity Regulatory Commission via a writ petition under Article 226. The Appellate Tribunal had remanded the matter for violation of procedural mandates. The High Court noted that since an efficacious alternative remedy exists under Section 111 of the Electricity Act, 2003, it was appropriate for experts in that forum to adjudicate,

What did the court decide?

Rules were discharged with liberty to the petitioner to avail the alternate statutory remedy of appeal before the Electricity Appellate Tribunal.

Vinay Tilokchand Karnavat Vs State of Maharashtra… — Writ and Judicial Review | Bombay HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 4336 OF 2015

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Mr. Vinay Tilokchand Karnavat
Age 50 years, Occu: Medical
Practice, R/o Anand Hospital,
Sillod, District Aurangabad

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... Petitioner

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VERSUS

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1. The State of Maharashtra, through its Secretary, Power & Energy Department, Mantralaya, Mumbai 400 032.

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2. Maharashtra Electricity Regulatory Commission, 13th Floor, Centre No.1, World Trade Centre, Cuff Parade, Mumbai Through its Chairman.

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3. Maharashtra State Electricity Distribution Limited, Prakashgad, Bandra (East), Mumbai

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4. Chandra Iyengar Age Major, Occu: Chairperson of Respondent No.2 Commission C/o Respondent No.2.

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Mr. R. R. Mantry, Advocate h/for Mr. R. R. Sancheti,
Advocate for the petitioner
Shri B. A. Shidne, AGP for respondent No. 1 State
Mr. Ratnakar Singh, Advocate for Respondent Nos. 2 & 4.
Mr. Anil S. Bajaj, Advocate for respondent No.3.

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CORAM:S. V. GANGAPURWALA &

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K. L. WADANE, JJ.
 RESERVED ON:22nd October, 2016
PRONOUNCED ON:27th October, 2016

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JUDGMENT (Per K. L. Wadane, J):

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1. Heard the learned counsel for the parties.

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2. Rule. Rule made returnable forthwith. With
consent of parties, the petition is taken up for final
disposal.

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3. The petitioner has challenged the order passed
by respondent no.2, dated 5th September, 2013 along with
public notice dated 24.02.2015 and the proceedings of
advertisement No. 12/2014 by which respondent No.2 has
fixed tariff. The petitioner has further challenged
the order passed by respondent No.2 in Case No.
95/2013, dated 25.06.2015 by way of amendment in the
writ petition.

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4. The petitioner is a consumer of respondent No.3-
Company. Respondent No.2 is a Regulatory Commission
established under the Electricity Act, 2003. It has
power to fix tariff and is expected to be a watchdog
of interest of the consumers and function
transparently.

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5. According to the petitioner, on 16.08.2012,
respondent No.2 settled the tariff w.e.f. 1st August,
2012 in case No.19/2012. As per provisions of
Electricity Act, respondent No.3 has to apply to

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respondent No.2 for increase in the tariff. On such
application, respondent No.2 Commission has to issue a

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public notice, it has to call and hear objections of
the consumers and then it has to take decision. On
05.09.2013, without any request or application of
respondent No.3, respondent No.2 Commission took up suo
moto proceedings and in total breach of the mandatory
provisions of public hearing etc., allowed respondent
No.3 Company to recover huge amount of Rs.3450.13

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crore, practically increasing cost by 20% to the
consumers. The recovery was started from 7th September,
2013 and much more amount is recovered from the
consumers.

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6. TATA Motor challenged the said order in Appeal
No. 295/2015 before the Appellate Tribunal for
Electricity. The Appellate Tribunal remanded the matter
to respondent No.2 for deciding the matter afresh. The
Appellate Tribunal also directed respondent No.2 to
decide the matter by following the procedure as
contemplated under Sections 63, 64 and 86(3) of the
Electricity Act, 2003.

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7. On 24.02.2015, the Regulatory Commission, i.e.
Respondent No.2 put up a notice on its website without
disclosing any particulars as to how and why additional
burden is put up, its impact, necessity, etc. due to

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which, public at large could not understand adverse
affects and put objections etc. On 09.04.2013, date
was fixed at Aurangabad. The petitioner was personally
present and gave written representation, requesting to
publish public notice in newspaper, giving all details
to enable the public at large to raise effective
objections. Representation was received but not
answered nor detail publication was given on the
website.

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8. Respondent No.2 Commission has denied the
material allegations in the petition and it is
contended that petition is not maintainable as
alternative remedy is available under the provisions of
the Electricity Act, 2013. The Appellate Tribunal,
has power to consider the aspect in appeal under
section 111 of the Electricity Act. By way of
additional affidavit it is contended that after remand
of the matter, respondent no.2, after giving proper
opportunity to these concerned parties, has passed
order on 26.03.2015. Respondent No.2 prays to reject
the petition.

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9. We have heard the arguments of Mr. R. R. Mantri,
learned counsel for the petitioner, Mr. B. A. Shidne,

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learned AGP for respondent No. 1 State, Mr. Ratnakar
Singh, learned counsel for Respondent Nos. 2 & 4 and
Mr. Anil S. Bajaj, Advocate for respondent No.3.

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10. During the course of argument, Mr. Mantri has
argued that respondent no.2 fixed and finalized the
tariff without request/application of respondent no.3.
The commission has took up the proceedings suo moto
which is in contravention of section 64 of the
Electricity Act. He further argued that respondent No.2
Commission has not followed the provisions of Section
64 of the Electricity Act nor gave a public notice.
Objections were not called from the Consumers and it
has decided the matter haphazardly in one day.
Further more, initial order dated 5th September, 2013
was assailed before the Appellate Tribunal,
Electricity and the learned Appellate Tribunal has
remanded the matter and directed respondent No.2 to
pass a consequential order. The Appellate Tribunal has
observed that respondent no.2 has not followed the
mandatory provisions. Therefore, according to Mr.
Mantri, respondent no.2 was not empowered to re-fix the
tariff. Only it has to pass consequential orders as
per directions of the Appellate Tribunal.

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11. Mr. Mantri, the learned counsel further argued
that after remand of the matter, a public notice was
given. It was without any material particulars which
the common people can know. Giving of public notice and
hearing was a farce. Mr. Mantri further argued that the
work of the Commission/respondent No.2 is in the
regulatory nature and it should have safeguarded the
interest of the consumers but in the blatant violation
of the mandatory provisions, respondent No.2 has passed
the impugned order dated 25.06.2015.

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12. Mr. Mantri, the learned counsel for the
petitioner has relied on the observations of the Apex
court in the case of Union of India & ors. Vs. Tantia
Construction Pvt. Ltd., reported in 2011(5) SCC 697
which reads as under:

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13."27. Apart from the above, even on the
question of maintainability of the writ petition
on account of the Arbitration Clause included in
the agreement between the parties, it is now
well-established that an alternative remedy is
not an absolute bar to the invocation of the writ
jurisdiction of the High Court or the Supreme
Court and that without exhausting such
alternative remedy, a writ petition would not be
maintainable. The various decisions cited by Mr.
Chakraborty would clearly indicate that the

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constitutional powers vested in the High Court or
the Supreme Court cannot be fettered by any
alternative remedy available to the authorities.
Injustice, whenever and wherever it takes place,
has to be struck down as an anathema to the rule
of law and the provisions of the Constitution. We
endorse the view of the High Court that
notwithstanding the provisions relating to the
Arbitration Clause contained in the agreement,
the High Court was fully within its competence to
entertain and dispose of the Writ Petition filed
on behalf of the Respondent Company. "

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14. Mr. Mantri, the learned counsel also relied on

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the judgment of the Apex Court in the case of M. P.
State Agro Industries Development Corporation Ltd. &
another Vs. Jahan Khan, reported in 2007 AIR SC 3133,
wherein it is observed that:

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15."The rule of exclusion of writ jurisdiction
due to availability of an alternative remedy
is a rule of discretion and not one of
compulsion. In an appropriate case, in spite
of the availability of an alternative remedy,
a writ court may still exercise its
discretionary jurisdiction of judicial review,
in at least three contingencies, namely, (i)
where the writ petition seeks enforcement of
any of the fundamental rights; (ii) where
there is failure of principles of natural
justice or (iii) where the orders or

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proceedings are wholly without jurisdiction or
the vires of an Act is challenged. In these
circumstances, an alternative remedy does not
operate as a bar."

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16. Mr. Mantri, the learned counsel further submits
that Respondent No.4 has committed contempt of this

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Court. This Court on 16.04.2015 had issued notice.
Respondent No.4 was served with the notice, had
appeared in the matter on 07.05.2015 and sought time.
When this Court was seized of the matter, then
respondent No.4 ought not to have decided the

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proceedings. The said act amounts to contempt of this
court.

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17. As against this, Mr. Singh, the learned counsel
for respondent No.2 has argued that the respondent
No.2, after remand of the matter has observed the
relevant mandatory provisions of the Electricity Act
and after giving public notice and after hearing the
objections, passed appropriate orders. Further more,
it was submitted by the learned counsel that the
petitioner has efficacious remedy under the provisions
of Section 111 of the Electricity Act. Therefore the
writ petition is not maintainable. The learned counsel
has further argued that when the efficacious remedy

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of appeal is available to the petitioner, it is not
desirable to exercise jurisdiction under Article 226
of the Constitution of India. The learned counsel
further relied on the provisions of the Maharashtra
Electricity (Conduct of Business) Regulation, 2004 and
stated that the Commission may, suo moto or on petition
by any affected person, initiate proceedings. The
learned counsel has relied on the following case laws:

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(1) (1983) 2 Supreme Court Cases 433, Titaghur Paper
Mills Co. Ltd. and another vs. State of Orissa and
others, wherein it is held that:

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"Where a right or liability is created by a
statute which gives a special remedy for
enforcing it, the remedy provided by that statute
alone must be availed of."

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(2) (1998) 8 Supreme Court Cases 1, Whirlpool
Corporation Vs. the Registrar of Trade Marks, Mumbai
and another, wherein the it is held that:

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"14. The power to issue prerogative writs under
Article 226 of the Constitution is plenary in
nature and is not limited by any other provision
of the Constitution. This power can be exercised
by the High court not only for issuing writs in
the nature of habeas corpus, mandamus,

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prohibition, quo warranto and certiorari for the
enforcement of any of the Fundamental Rights
contained in Part III of the Constitution of
also for "any other purpose."

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18. Before going to consider the merit of the case,
it is material to note that when the present petition
was pending before this Court, respondent No.2 decided
the tariff by its order dated 25.06.2015. In fact, it
was expected from respondent No.2 to await the decision
of this court. The propriety required so. Therefore,
it was expected from it to stay away its hand. However,
respondent No.2 was exercising quasi-judicial power.
This Court had not passed any prohibitory order
against the respondent. As such act of the respondent
passing order during pendency of the present petition
may not amount to contempt of Court in strict sense.

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19. In view of submissions of Mr.Mantri, it is
necessary to refer to relevant observations of the
Tribunal i.e. summary of findings, which reads as
under:

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(a) The impugned order has been passed in
violation of Sections 62, 64 and 86(3) of the
Electricity Act, 2003. The State Commission should
have followed the mandatory procedure contemplated
under section 64 and 86(3) of the Electricity Act,

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2003 by issuing public notice and giving opportunity
to the consumers to raise objections/suggestions on
the retail supply of tariff proposed and only after
considering these objections/suggestion, should have
determined the tariff.

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(b) As per section 62(4)of the Act, the tariff
may not ordinarily be amended more frequently than
once. However, the tariff can be amended more than
once in a financial year in respect of any changes
in terms of fuel surcharge formula as may be
specified by the State Commission. This Tribunal has
held earlier that the tariff can be revised without
following the procedure u/s 64 provided the revision
in tariff is in terms of the Fuel surcharge Formula

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as specified by the State Commission through
Regulations or by the tariff Order. The Impugned
Order was not an amendment in tariff as per the
Scheduled specified Fuel Surcharge Formula.

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(c) we, therefore, set aside the impugned order and
remand the matter to the State commission to give
opportunity to the parties concerned as per the
provisions of Section 64 of the Electricity act and
hear the matter in a transparent manner and pass the
final order uninfluenced by its earlier findings,
as expeditiously as possible. we want to make it
clear that we are not giving any opinion on the
merits."

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20. Looking to the above observations, it appears

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that the Appellate Tribunal has directed respondent
no.2 to pass order after following relevant provisions

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of the Electricity Act and further it was clarified
that the Tribunal has not given any opinion on the
merits of the case.

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21. We have perused the order dated 25.06.2015
impugned by way of amended pleadings. On perusal of
the same, it appears that the issue of fixation/
revision of tariff is an issue to be examined and
determined by the Experts. Furthermore, in view of the
provisions of Section 111 of the Electricity Act, there
is remedy of Appeal available for the petitioner or
any other aggrieved person. In view of the fact that
efficacious remedy is provided by way of appeal before
the Authority consisting of the experts in the said
field, it would be more appropriate that the matter is
dealt by the experts. We are of the opinion that it
is not necessary to exercise writ jurisdiction under
Article 226 of the Constitution of India.

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22. On perusal of the above observations of the
Apex Court in the case of M.P.State Agro Industries

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Development Corproation Ltd. supra, we do not think
that the petitioner is seeking enforcement of his
fundamental right nor the impugned orders are wholly
without jurisdiction. In such circumstances, this is

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not a fit case warranting exercise of writ jurisdiction
under Article 226 of the Constitution. As such the
petition is disposed of with liberty to the petitioner
to avail alternate remedy. All contentions of the
respective parties are kept open. The Forum where the
appeal/proceedings may be filed shall consider the time
spent in prosecuting the present writ petition.

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23. Rule is discharged with aforesaid observations.

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There shall be no order as to costs.

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(K. L. WADANE, J.) (S. V. GANGAPURWALA, J. )

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JPC

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Vinay Tilokchand Karnavat v. State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Vinay Tilokchand Karnavat v. State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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