M/S Saumya Dsm Infratech Limited vs Union Of India & Ors
2014 Latest Caselaw 3099 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                         Date of decision: 15th July, 2014
+                 LPA No.332/2014 & CM No.7276/2014 (for stay)

       M/S SAUMYA DSM INFRATECH LIMITED           ..... Appellant
                    Through: Mr. K.K. Rai, Sr. Adv. with Mr. S.K.
                             Pandey, Adv.
                          Versus
    UNION OF INDIA & ORS                       ..... Respondents

Through: Ms. Anjana Gosain, Adv. for UOI.

Mr. Prashant Bez Boruah with Mr. Rakesh Dewan, Advs. for R-2.

Counsel for R-3.

Mr. Ajit Pudussery with Ms. Shruti Sarma Hazarika, Advs. For R-4.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This intra-court appeal impugns the order dated 6 th March, 2014 of the

learned Single Judge of dismissal of W.P.(C) No.2809/2013 preferred by the

appellant owing to availability of alternative effective remedy before the

Petroleum and Natural Gas Regulatory Board (PNGRB) constituted under the

Petroleum and Natural Gas Regulatory Board Act, 2006 and giving liberty to

the appellant to approach the PNGRB. The learned Single Judge, in the

impugned order has recorded that it was the contention of the appellant / writ

petitioner itself that the jurisdiction to adjudicate the dispute subject matter of

the filing of the writ petition was with PNGRB but the appellant / writ

petitioner was unable to approach the PNGRB due to the Member (Legal) of

the PNGRB having superannuated and no appointment of a new Member

(Legal) having been made. The learned Single Judge in the impugned order has

further noticed that since the filing of the writ petition, Member (Legal) of the

PNGRB had been appointed and thus the reason for which the appellant / writ

petitioner, instead of approaching the PNGRB had filed the writ petition, did

not survive.

2. We have enquired from the senior counsel for the appellant / writ

petitioner that when it was the case of the appellant / writ petitioner itself in the

writ petition that the dispute subject matter of the writ petition, as per the

provisions of the PNGRB Act was to be adjudicated before the PNGRB and

that the appellant / writ petitioner had been compelled to file the writ petition

only for the reason of the PNGRB being not functional, why has the appellant /

writ petitioner preferred this appeal instead of approaching the PNGRB.

3. The senior counsel for the appellant / writ petitioner states that though

according to the appellant / writ petitioner the dispute subject matter of the writ

petition is to be resolved before the PNGRB and though the PNGRB now

functional but the appellant / writ petitioner has preferred this appeal seeking

decision by this Court in exercise of powers under Article 226 of the

Constitution of India owing to the PNGRB, which is the respondent in civil

writ petition, in the counter affidavit filed to the writ petition having taken a

stand that it does not have the jurisdiction to decide such dispute and that the

jurisdiction to decide the same is before the Appellate Tribunal for Electricity

(APTEL) before which appeals under the PNGRB Act lie against the orders of

PNGRB. The senior counsel has further argued that APTEL, on the appellant /

writ petitioner making enquiries, has taken a stand that an appeal lies before it

only if an adjudication is made by the PNGRB and since there is no

adjudicatory order of the PNGRB, the appellant / writ petitioner is unable to

approach APTEL either. It is yet further contended that the respondent PNGRB

having made its stand clear in its counter affidavit to the writ petition from

which this appeal arises, no purpose will be served by the appellant / writ

petitioner now approaching the PNGRB as, PNGRB having already taken a

stand in the counter affidavit to the writ petition cannot be expected to

adjudicate with an open mind the contention of the appellant / writ petitioner

that PNGRB in fact has jurisdiction to adjudicate the dispute which has arisen.

4. We have perused the counter affidavit to the writ petition filed by the

respondent PNGRB before the learned Single Judge. The said counter affidavit

is of the Advisor in the office of the respondent PNGRB and who has verified

the contents of the said counter affidavit as true and correct to the best of his

knowledge based on official records and on legal advice received. We have

enquired from the senior counsel for the appellant / writ petitioner, whether the

dispute of the appellant / writ petitioner with the respondent no.4 Gail Gas

Limited and which according to the appellant / writ petitioner is to be

adjudicated, is to be adjudicated by the said Advisor of the respondent PNGRB.

The senior counsel for the appellant / writ petitioner replies in the negative and

in our opinion, rightly so as would be evident from the following provisions:-

(a) Section 3 of the PNGRB Act which provides for establishment of

PNGRB, vide sub Section (3) provides that the PNGRB is to

consist of a Chairperson, a Member (Legal) and three other

members;

(b) Section 4 provides for the qualifications for appointment of the

Chairperson and other members;

(c) Section 12 provides for resolution of disputes by the PNGRB;

(d) Section 13, while describing the procedure to be followed by

PNGRB, in sub Section (2) provides that the proceedings before

the PNGRB shall be deemed to be a judicial proceeding within the

meaning of Sections 193 and 228, and for the purposes of Section

196, of the Indian Penal Code, 1860 and the PNGRB shall be

deemed to be a Civil Court for the purposes of Section 195 and

Chapter XXVI of the Code of Criminal Procedure, 1973;

(e) Section 24 provides for the constitution of the Benches to

adjudicate the disputes;

(f) Section 25 provides for the filing of complaints before the

PNGRB; and,

(g) Section 29 provides for the orders passed by the PNGRB to be

deemed to be decrees.

It is thus obvious that the adjudicatory functions of the PNGRB are to be

performed by the benches, comprising of Chairperson and members,

constituted in accordance with prescribed procedure.

5. The senior counsel for the appellant / writ petitioner further agrees that

PNGRB performs regulatory as well as adjudicatory powers.

6. We have in the circumstances enquired from the senior counsel for the

appellant / writ petitioner as to how the adjudicatory powers in terms of the

above to be exercised by the PNGRB can be confused with the exercise of its

regulatory powers. We may mention that the PNGRB having been impleaded

as a respondent in the writ petition, had to file a counter affidavit and disclose

its stand therein, but the same does not amount to adjudication by the PNGRB

in accordance with the prescribed procedure on the matters deposed by the

Advisor of the PNGRB in the counter affidavit so filed to the writ petition.

7. The senior counsel for the appellant / writ petitioner contends that in the

face of the stand of the PNGRB in the counter affidavit of having no

jurisdiction to adjudicate the dispute raised by the appellant / writ petitioner in

the writ petition, asking the appellant / writ petitioner to still approach the

PNGRB would be a futile exercise and amount to an appeal from the caesar to

caesar.

8. We are unable to agree. We have drawn the attention of the senior

counsel to the decisions taken by the Full Court in exercise of administrative

powers and which are assailed before a Bench of two Judges of this Court and

who often, in exercise of their judicial powers, strike down the same. We have

thus enquired from the senior counsel, whether not the apprehension expressed

is misplaced.

9. No response is forthcoming. All that the senior counsel states is that we

may in our order observe that PNGRB has jurisdiction to adjudicate the dispute.

It is yet further contended that the appellant / writ petitioner even prior to the

filing of the writ petition had filed a complaint before the PNGRB but no action

has been taken thereon.

10. We are unable to accept the aforesaid position. We cannot usurp to

ourselves the powers vested in the PNGRB. It is for the PNGRB, upon being

approached by the appellant / writ petitioner to, if a question of jurisdiction

arises, adjudicate the same in the first instance. As far as the second contention

is concerned, the complaint to which our attention is drawn is addressed to the

Secretary of PNGRB and it is not clear whether the same is invoking the

adjudicatory powers of PNGRB. In fact the counsel for the appellant / writ

petitioner is not able to confirm whether the said complaint is in accordance

with the prescribed procedure or not and what steps had been taken to pursue

the same.

11. We have further enquired from the senior counsel for the appellant / writ

petitioner whether, after receipt of the counter affidavit aforesaid also, it is the

case of the appellant / writ petitioner that PNGRB has jurisdiction to resolve the

dispute as raised in the writ petition.

12. The senior counsel replies in the affirmative.

13. We, in the circumstances find no error in the order of the learned Single

Judge of dismissing the writ petition owing to the stand of the appellant itself of

the alternative remedy before the PNGRB being available to the appellant / writ

petitioner and dismiss this appeal. We refrain from imposing any costs on the

appellant / writ petitioner.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE JULY 15, 2014 pp