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Judgment
As the common question of law and facts are involved in all these writ petitions and that is why, all these writ petitions have been heard together.
The petitioner(s) have preferred these writ petitions for direction upon the respondents to carry out adjustment of the Monthly Energy Bill(s) of the
petitioner(s)’s unit for the period commencing May, 2010 to October, 2012 in terms of Clause 5(3) of 2009 Tariff Regulation of Central Electricity
Regulatory Commission. The further prayer is made for direction upon the respondents to carry out necessary calculation of the amount to be
refunded to the petitioner(s) in terms of Regulation 5(3) of the 2009 Tariff Regulations of Central Electricity Regulatory Commission as also in terms
of the judgment of this Court rendered in W.P.(C) No.4097 of 2011 along with analogous cases dated 20.03.2012, further, read with Multi Year Tariff
Order dated 04.09.2014 passed by Jharkhand State Electricity Regulatory Commission for the period 2013-14 to 2015-16.
Mr. Nitin Kumar Pasari, the learned counsel appearing for the petitioner(s) submits that Clause 5(3) of 2009 Tariff Regulations of Central
Electricity Regulatory Commission provides for refund to or recovery from the beneficiaries or the transmission customers, as the case may be. He
further submits that in view of the order dated 20.03.2012 passed in W.P.(C) No.4097 of 2011 and Tariff Order dated 04.09.2014 of the year 2013-14
and 2015-16 the entitlement of the petitioner(s) towards refund cannot be disputed. He further submits that the petitioner(s) as High Tension
Consumer of Damodar Valley Corporation [hereinafter referred to as ‘DVC’] having supply of electricity as 33 KV through Primary Dedicated
Direct Transmission Lines bearing Consumer No.34140. The DVC is a licensee under section 14, 4th proviso of the Electricity Act, 2003 [hereinafter
referred to as the Act of 2003] and is engaged in the business of generation and transmission of electricity in the State of Jharkhand and West Bengal.
Mr. Pasari, the learned counsel for the petitioner(s) submits that the Electricity Act, 2003 was enacted to consolidate the laws relating to generation,
transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry in the
interest of consumers and supply of electricity to all area, rationalization of electricity tariff, ensuring transparent policies regarding subsidies,
promotion of efficient and environmentally benign policies, constitution of Central Electricity Authority, Regulatory Commissions and establishment of
Appellate Tribunal and for matters connected therewith or incidental thereto. After coming into effect of the Act, no utility can claim tariff from its
consumers on its own, unless the tariff is determined by the Appropriate Commission. The judgment dated 10.05.2010 of the learned APTEL in this
regard has been referred by Mr. Pasari, the learned counsel. Para 104 of the said judgment is quoted here in below:
“104. Under the above circumstances, the Application filed by the DVC in IA No.349/2009 seeking for the permission to continue to
collect the tariff fixed by the DVC under section 20 of the DVC Act could not be sustained (1) especially when the final order had already
been passed by the Central Commission on 06.08.2009 fixing the tariff; (2) particularly when the said tariff order has not been stayed by
this Tribunal and (3) more particularly when we feel prima facie that impugned tariff order passed by the Central Commission is valid.â€
In view of the above order of the learned APTEL, the DVC for the first time under the Electricity Act, 2003 started raising bills provisionally as per
tariff determined by CERC as also in terms of Appellate Tribunal order dated 10.05.2010 and as per the Regulation 5(3) of 2000 Regulation of CERC.
By order dated 03.10.2006, the Central Electricity Regulatory Commission has determined the tariff of the DVC for the period 01.04.2006 to
31.03.2009. On appeal preferred by the DVC which was numbered as Appeal No.273 of 2007 the matter was remanded by the learned APTEL to
Central Electricity Regulatory Commission on limited issues by an order dated 23.11.2007. The Central Electricity Regulatory Commission passed a
revised Tariff Order of DVC dated 06.08.2009. The DVC again preferred an appeal vide Appeal No.146 of 2009 before the learned Appellate
Tribunal which was dismissed by an order dated 10.05.2010. The DVC has preferred Civil Appeal No.4881 of 2010 before the Hon’ble Supreme
Court against the order dated 10.05.2010 in which refund of the excess amount collected by the DVC from the consumers has been stayed. The order
dated 06.08.2009 for the first time implemented by the DVC in May, 2010 and raised bills on the consumers including the petitioner(s) on that basis.
Mr. Pasari, the learned counsel submits that Clause 5(3) of Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulation,
2009 was made effective from 01.04.2009 with a proviso that for the period subsequent to the last tariff order, if no new tariff could be determined
within the time frame provided under the Act, in that event, the last operative tariff would become the provisional tariff for the subsequent period. Mr.
Pasari, the learned counsel submits that in view of this provision, the tariff which was applicable as on 30.04.2010 become provisional tariff for the
period with effect from 01.05.2010 and on the basis thereof the licensee continued to bill the consumers of the licensee Corporation. He further
submits that for want of information, data as also clarification from the Transmission Licensee post 01.05.2010, the Tariff Order of Generating
Stations and Transmission System of the respondent/Corporation could not be determined by the Central Electricity Regulatory Commission. He
submits that the Central Electricity Regulatory Commission carry out the amendment in Regulation-5 of the terms and conditions of the Tariff
Regulation by introducing Clause 4 to the said Regulation and the said Regulation was inserted vide amendment dated 02.05.2011 and in terms
whereof provisional tariff allowed to the Licensee, subject to the Final Tariff Order. Another amendment was carried out in Clause 5(3) whereby the
modus operandi to calculate the interest for the period post determination of the Final Tariff Order was inserted. He further submits that tariff period
of 2009-2014 was interim in nature and was subject to the provision as contained in amended Clause 5(3) of the Tariff Regulations, 2009. He submits
that the petitioner(s) were not aware about such insertion/amendment carried out by the Central Electricity Regulatory Commission to the benefit of
inter-State licensee. He submits that a provisional differential bill was served by the Corporation on the petitioner for the period May, 2010 to May,
2011 on the basis of the provisional tariff order dated 23.06.2011. The petitioner(s) made necessary enquiry with regard to the period May, 2010-11
and came to know that the Central Electricity Regulatory Commission has passed the order granting provisional tariff order to DVC with the aid of
Regulation 5(4) of the Tariff Regulation. The petitioner challenged the same before the High Court on the ground of service of differential bill for the
period May, 2010-11, huge liability to the tune of crores of rupees was fastened upon the petitioner(s). In the writ petition the Court restrained the
respondent-DVC from seeking recovery of any further in furtherance of order dated 23.06.2011 passed by the Central Electricity Regulatory
Commission. Finally, that writ petition was heard and was dismissed and the restraint order was vacated but observation was made to the effect that
this interim arrangement is in the interest of both the parties because of the reason that as per the proviso to Clause (3) of the Regulation 5, if there is
delay in issuing the tariff order the parties were bound to pay the difference amount with simple interest @ equal to the short term prime lending rate
of the SBI, which was as on 1st April of the concerned/respective year. If the provisional bill paid by the consumer exceeds the final tariff approved
by the Commission then in that situation the applicant (here in this case, the DVC) shall require to pay and refund the amount with the same rate of
interest as prescribed for the beneficiaries and consumers. Sub Clause (d) Section 61 of the Electricity Act, 2003 provides that the appropriate
Commission shall be guided by the principles/guidelines given in various clause of Section 61 which includes sub-clause (d) which requires
safeguarding of consumers’ interest and at the same time recovery of the cost of electricity in a reasonable manner. In our opinion, the prescribing
of the provisional tariff is also in the interest of the consumers as they will not have all of sudden burden of arrears of electricity charges with interest.
It may be argued and has been argued that the petitioners consumers are of the opinion that in final tariff order, tariff may not be increased and if
increased then the petitioners are ready to pay all arrears with interest in accordance with law and therefore, in the garb of such order, the respondent
DVC cannot issue bills to the writ petitioners. Against the judgment of the High Court the petitioner(s) filed the appeal before the Hon’ble
Supreme Court which was registered as SLP (C) No.10945 of 2012 which is pending adjudication and the Hon’ble Supreme Court had declined to
grant any ad-interim order in favour of the petitioner(s). Mr. Pasari, the learned counsel for the petitioner(s) submitted that in view of the dismissal of
the writ petition and as there is no stay by the Hon’ble Supreme Court another differential bill was served for the period post May, 2011 till the
date of passing of the orders in the writ petition. The petitioner(s) had disputed the amount as was claimed by the DVC. As the Central Electricity
Regulatory Commission was in seisin of the tariff proceeding for the period 2009-2014, finally on different dates, the last being September, 2013, the
period 2009-2014 was determined. He further submitted that in view of the Central Electricity Regulatory Commission, the capacity charges for the
period May, 2010 to October, 2012 was worked out and it was evident that for the three financial years, DVC was enjoying the protection in terms of
Regulation 5(4) of the Tariff Regulation, 2009 and the DVC had been charging excess capacity charges. He submitted that in view of the above facts,
since or the period May 2010 to October, 2010 the petitioner(s) and the other similarly situated consumers having been provisionally charged in terms
of the provisional Tariff Order granted in terms of Regulation 5(4) and now that final tariff order has been determined by the Central Electricity
Regulatory Commission, the petitioner(s) are entitled for the refund since undisputedly the excess capacity charge has been realized from the
petitioner(s). By way of referring certain tariffs and by way of referring certain paragraphs of the writ petition, he tried to justify that the petitioner(s)
is entitled for refund and submitted that the writ petition is fit to be allowed.
Per contra, Mr. Srijit Choudhary, the learned counsel appearing for the respondent-D.V.C submitted that with regard to the enforcement of Clause
5(3) of Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations, 2009 [hereinafter referred to as the ‘Tariff
Regulation, 2009’] and other relief, the writ petition is fit to be dismissed as there is already an efficacious alternative remedy under the provisions
of the Act of 2003, such as-
(a) The filing of the petition before the Central Electricity Regulatory Commission [hereinafter referred to as ‘the Central
Commission’] under the provisions of Section 79 and other applicable provisions of the Electricity Act, 2003 in regard to the
enforcement of the Orders passed and Regulations notified by the Central Commission for the violation if any of such Regulation,
(b) An appeal, on both questions of facts and questions of law to an expert Appellate Tribunal as per section 111 of the Electricity Act,
2003. The Appellate Tribunal is comprised of Hon’ble Chairperson, namely, a former Judge of the Hon’ble Supreme Court, another
Judicial Member, namely, former Judge of the Hon’ble High Court and two Technical Members; and
(c) Second appeal on substantial questions of law to the Hon’ble Supreme Court under section 125 of the Electricity Act, 2003 from the
orders of the Hon’ble Appellate Tribunal.
He further submitted that there exists a statutory remedy of regular first appeal and second appeal under the Act of 2003 with regard to the
grievances for which the petitioners have filed these writ petitions. Mr. Choudhary, the learned counsel for the respondent-DVC had referred to the
judgment of the Hon’ble Supeme Court in case of “West Bengal Electricity Regulatory Commission v. CESC Limited†reported in (2002) 8
SCC 715. Para 102 of the said judgment is reproduced below:
“102. We notice that the Commission constituted under Section 17 of the 1998 Act is an expert body and the determination of tariff which
has to be made by the Commission involves a very highly technical procedure, requiring working knowledge of law, engineering, finance,
commerce, economics and management. A perusal of the report of ASCI as well as that of the Commission abundantly proves this fact.
Therefore, we think it would be more appropriate and effective if a statutory appeal is provided to a similar expert body, so that the various
questions which are factual and technical that arise in such an appeal, get appropriate consideration in the first appellate stage also. From
Section 4 of the 1998 Act, we notice that the Central Electricity Regulatory Commission which has a judicial member as also a number of
other members having varied qualifications, is better equipped to appreciate the technical and factual questions involved in the appeals
arising from the orders of the Commission. Without meaning any disrespect to the Judges of the High Court, we think neither the High Court
nor the Supreme Court would in reality be appropriate appellate forums in dealing with this type of factual and technical matters.
Therefore, we recommend that the appellate power against an order of the State Commission under the 1998 Act should be conferred either
on the Central Electricity Regulatory Commission or on a similar body. We notice that under the Telecom Regulatory Authority of India Act,
1997 in Chapter IV, a similar provision is made for an appeal to a Special Appellate Tribunal and thereafter a further appeal to the
Supreme Court on questions of law only. We think a similar appellate provision may be considered to make the relief of appeal more
effective.â€
He further submitted that sub-section 5 of Section 42 of the Act of 2003, the appropriate Forum for redressal of grievance of the consumers are
already there. He further submitted that the nature of the claim is not possible to be decided under Article 226 of the Constitution of India as the
prayer made in the writ petition(s) is for direction to calculate the amount of refund.
Mr. Sudarshan Srivastava, the learned counsel appearing on behalf of the Regulatory Commission submitted that there are alternative remedy
available for the petitioner(s) under the Act of 2003 and the disputed question of bill is involved in these writ petitions and in that view of the matter,
this Court may not interfere in the writ petitions. By way of referring to Section 142 of the Act of 2003, he submitted that punishment for non-
compliance of the direction given by appropriate Commission is already there. He further submitted that the petitioner(s) needs to file a petition before
the appropriate Commission for determination of their grievance and if the direction of the Commission is not fulfilled, the penalty provision is there
under section 142 of the Act of 2003.
In view of the above facts and submissions of the learned counsels appearing on behalf of the parties, this Court finds that the determination of
tariff involves a very highly technical procedure requiring working knowledge of law, engineering, finance, commerce, economics and management.
Mr. Pasari, the learned counsel in course of his arguments had also argued that the petitioner(s) is entitled for a refund of 0.27 paise per unit in view
of the revised Tariff. From the submission of the learned counsel appearing for the petitioner(s), it also transpired that the calculation is involved of
0.27 paise on the unit and in view of the fact that the petitioner(s) is High Tension consumer, it needs to be calculated by an expert body which is not
in the domain of this Court. This Court further finds that there are already alternative remedy under the Act of 2003 which has been noted supra in
this order. Reference in this regard may be made to the case of “Executive Engineer, Southern Electricity Supply Company of Orissa Limited
(SOUTHCO) & Anr. v. Sri Seetaram Rice Mill†reported in (2012) 2 SCC 10. 8Paragraph nos. 80, 81 and 82 of the said judgment is reproduced
here in below:
“80. It is a settled canon of law that the High Court would not normally interfere in exercise of its jurisdiction under Article 226 of the
Constitution of India where statutory alternative remedy is available. It is equally settled that this canon of law is not free of exceptions. The
courts, including this Court, have taken the view that the statutory remedy, if provided under a specific law, would impliedly oust the
jurisdiction of the civil courts. The High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India can
entertain writ or appropriate proceedings despite availability of an alternative remedy. This jurisdiction, the High Court would exercise with
some circumspection in exceptional cases, particularly, where the cases involve a pure question of law or vires of an Act are challenged.
This class of cases we are mentioning by way of illustration and should not be understood to be an exhaustive exposition of law which, in
our opinion, is neither practical nor possible to state with precision. The availability of alternative statutory or other remedy by itself may
not operate as an absolute bar for exercise of jurisdiction by the courts. It will normally depend upon the facts and circumstances of a
given case. The further question that would inevitably come up for consideration before the Court even in such cases would be as to what
extent the jurisdiction has to be exercised.
Should the courts determine on merits of the case or should they preferably answer the preliminary issue or jurisdictional issue arising
in the facts of the case and remit the matter for consideration on merits by the competent authority? Again, it is somewhat difficult to state
with absolute clarity any principle governing such exercise of jurisdiction. It always will depend upon the facts of a given case. We are of
the considered view that interest of administration of justice shall be better subserved if the cases of the present kind are heard by the
courts only where they involve primary questions of jurisdiction or the matters which go to the very root of jurisdiction and where the
authorities have acted beyond the provisions of the Act. However, it should only be for the specialised tribunal or the appellate authorities
to examine the merits of assessment or even the factual matrix of the case.
It is argued and to some extent correctly that the High Court should not decline to exercise its jurisdiction merely for the reason that
there is a statutory alternative remedy available even when the case falls in the abovestated class of cases. It is a settled principle that the
courts/tribunal will not exercise jurisdiction in futility. The law will not itself attempt to do an act which would be vain, lex nil frustra facit,
nor to enforce one which would be frivolousâ€"lex neminem cogit ad vana seu inutiliaâ€"the law will not force anyone to do a thing vain
and fruitless. In other words, if exercise of jurisdiction by the tribunal ex facie appears to be an exercise of jurisdiction in futility for any of
the stated reasons, then it will be permissible for the High Court to interfere in exercise of its jurisdiction. This issue is no longer res integra
and has been settled by a catena of judgments of this Court, which we find entirely unnecessary to refer to in detail. Suffice it to make a
reference to the judgment of this Court in Whirlpool Corpn. v. Registrar of Trade Marks where this Court was concerned with the powers of
the Registrar of Trade Marks and the Tribunal under the Trade and Merchandise Marks Act, 1958 and exercise of jurisdiction by the High
Court in the face of availability of a remedy under the Act.â€
In view of the judgment of the Hon’ble Supeme Court in case of “West Bengal Electricity Regulatory Commissionâ€(supra) and
“Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) & Anr.â€(supra) the relief prayed by the petitioner(s)
more effectively can be dealt with by the alternative Forum made under the Act of 2003.
As a cumulative effect of the above facts and discussions and keeping in view the availability of the statutory alternative remedy it would not be
proper for this Court to exercise its jurisdiction under Article 226 of the Constitution of India.
The determination of the dispute in this case and calculation of the refund squarely fall within the domain of the specialized authority and in that
view of the matter, this Court is not inclined to exercise its jurisdiction under Article 226 of the Constitution of India.
Accordingly, these writ petitions [being W.P.(C) No.27 of 2015, W.P.(C) No. 10 of 2015, W.P.(C) No. 109 of 2015, W.P.(C) No. 113 of
2015,W.P.(C) No. 191 of 2015, W.P.(C) No. 192 of 2015, W.P.(C) No. 239 of 2015, W.P.(C) No. 24 of 2015, W.P.(C) No. 29 of 2015,
W.P.(C) No. 33 of 2015, W.P.(C) No. 34 of 2015, W.P.(C) No. 35 of 2015, W.P.(C) No. 37 of 2015, W.P.(C) No. 407 of 2015, W.P.(C)
No. 5922 of 2014, W.P.(C) No. 8 of 2015 and W.P.(C) No. 91 of 2015] are dismissed with liberty to the petitioners to approach the appropriate
Forum by way of filing its objection/grounds for determination in accordance with law.
I.A., if any, also stands disposed of.