Nirmal Lohiya vs The State Of Madhya Pradesh
2021 Latest Caselaw 2310 MP

     HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR



 WRIT PETITION NO.                                   5851 /2021
 Parties Name                     NIRMAL LOHIYA
                                           Vs.
                                  THE STATE OF MADHYA PRADESH & OTHERS.
 Bench Constituted                Single Bench
 Judgment delivered By            HON'BLE SHRI JUSTICE VISHAL DHAGAT
 Whether        approved       for YES/NO
 reporting
 Name of counsel for parties      For petitioner: Shri Rahul Rawat, Advocate.

                                  For Respondent No.2: Shri Purushendra Kaurav, Advocate

General with Shri Aditya Khandekar, Advocate.

For Respondent No.3: Shri Prakash Upadhayay, Advocate.

 Law laid down                    -
 Significant paragraph number -


                                  (O R D E R)
                                  14/06/2021

Petitioner has filed present writ petition calling in question action of

respondent No.2 by which respondent is proceeding to determine the electricity

tariff of year 2021-2022 without giving an opportunity of hearing to petitioner

in violation of Regulation 12 of the Madhaya Pradesh Electricity Regulatory

Commission (Terms and Conditions for Determination of Tariff for Supply and

Wheeling of Electricity and Methods and Principles for Fixation of Charges)

Regulations, 2015 (hereinafter referred to as MPERC Regulations, 2015).

2. Learned counsel for the petitioner submitted that respondent Nos.3 and 4

had filed petition for determination of tariff before respondent No.2.

Publication was made on 12.02.2021 and objections were invited up to

08.03.2021and matter was fixed for public hearing on 09.03.2021 and

10.03.2021. It is further submitted by counsel that entire proceeding is contrary

to Regulation 12 of MPERC, Regulations, 2015. As publication was made on

12.02.2021 and objections were invited till 08.03.2021, therefore, very less

time was given to party interested to obtain copy of petition and prefer

objections. Petitioner has filed preliminary objection on basis of material

available with him, but respondents are not considering his objection and

proceedings ahead to determine the tariff for year 2021-2022. It is further

submitted by him that technical person has not been appointed on post of

Director, proper documentation and financial status were not filed along with

petition and without following Regulation 12 of MPERC, Regulations 2015,

respondents are proceeding to determine the tariff which is contrary to law. In

this background, it is submitted by counsel appearing for petitioner that

mandamus be issued to respondent No.2 to consider and decide the preliminary

objection of petitioner and provide copy of petition and adequate opportunity of

hearing to petitioner in the matter.

3. Counsel appearing for petitioner relied on the judgement reported in

(2018) 13 SCC 256 [Shreyash Industries Limited Vs. Punjab State Electricity

Board and Others]. He relied on paragraph No.5 of the judgment and

submitted that levy of surcharge without inviting objection from consumers is

bad in law and it amounts to violation of principles of natural justice. He also

places reliance on the judgement reported in (2002) 8 SCC 715 [ West Bengal

Electricity Regulatory Commission Vs. CESC LTD.]. Relying on said

judgment, counsel for petitioner submitted that the statute itself confers right on

a person to raise objections. Therefore, principles of natural justice is to be

strictly followed and non supply of copy of petition and in sufficient time to

obtain copy of petition amounts to violation of principles of natural justice.

Respondent No.2 ought to have provided copy of petition and hear the

petitioner before passing any final order regarding determination of tariff.

Procedure adopted by respondents is not transparent. Commission should

ensure transparency while exercising powers discharging its function. Action of

respondent No.2 amounts to denial of participation of interested person and

violation of principles of natural justice. Commission should hold public

hearing on objections.

4. Counsel for petitioner has also relied on on the judgement reported in

AIR 1963 SC 1618 [State of Uttar Pradesh Vs. Jogendra Singh] and

submitted that word "may" occurring in Regulation 12 of MPERC,

Regulations, 2015 shall be construed as "shall" and it is not in discretion of

Commission to do away with right of hearing on its discretion. The word "may"

in Regulation 12 of MPERC, Regulations, 2015 means "must". He relied on

paragraph No.8 of said judgment which is quoted as under:-

"Rule 4 (2) deals with the class of gazetted government servants and gives them the right to make a request to the Governor that their cases should be' referred to the Tribunal in respect of matters specified in clauses (a) to (d) of sub-rule (1). The question for our decision is whether like the word " may" in rule 4 (1) which confers the discretion on the Governor, the word ",may" in subrule (2) confers discretion on him, or does the word ,(may" in sub- rule (2) really mean "shall" or "'must" ? There is no doubt that the word "'may" generally does not mean "must" or "shall". But it is well settled that the word "may" is capable of meaning "must" or "'shall" in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command. Sometimes, the legislature uses the word "may" out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. In the present case, it is the context

which is decisive. The whole purpose of rule 4 (2) would be frustrated if the word "may" in the said rule receives the same construction as in sub-rule (1). It is because in regard to gazetted government servants the discretion had already been given to the Governor to refer their cases to the tribunal that the rule-making authority wanted to make a special provision in respect of them as distinguished from other government servants falling under rule 4 (1) and rule 4 (2) has been prescribed, otherwise rule 4 (2) would be wholly redundant. In other words, the plain and unambiguous object of enacting rule 4 (2) is to provide an option to the gazetted government servants to request the Governor that their cases should be tried by a Tribunal and not otherwise. The rule-making authority presumably thought that having regard to the status of the gazetted government servants, it would be legitimate to give such an option to them. Therefore, we feel no difficulty in accepting the view taken by the High Court that rule 4(2) imposes an obligation on the Governor to grant a request made by the gazetted government servant that' his case should be referred to the Tribunal under the Rules. Such a request was admittedly made by the respondent and has not been granted. Therefore, we are satisfied that the High Court was right in quashing the proceedings proposed to be taken by the appellant against the respondent otherwise than by referring his case to the Tribunal under the Rules."

5. Learned Advocate General appearing for respondent No.2 submitted that

petition for issuance of tariff order was admitted by Commission on 09.02.2021.

Notices for submitting objections were issued on 12.02.2021 and last date fixed

for submitting objection was 08.03.2021. Petitioner has submitted his objection

by e-mail on 04.03.2021. Total 51 objections/suggestions were received. Said

objections/suggestions will be considered by Commission and thereafter tariff

order shall be passed for financial year 2021-2022. Petition filed by the

petitioner is premature as final order is yet to be passed and if petitioner is

aggrieved by final order, he has remedy to prefer an appeal against fixation of

tariff by Commission. All documents and petition are available on website and

petitioner was having enough time to obtain copy of all documents and petition.

Petitioner did not download copy of petition nor approached relevant person for

obtaining hard copy. There was sufficient time for petitioner to submit objection.

Petitioner's objection is being considered by Commission and there is no

violation of rights of natural justice of petitioner or violation of Regulation 12 of

MPERC, Regulations, 2015. It is further submitted that as per Section 64 of

Electricity Act, 2003 Commission is bound to pass a tariff order within period of

120 days from admission of petition. This period has further been reduced to 90

days by amendment in Electricity Act, 2003. Reminder has already been issued

by Ministry of Power to Commission for decision on tariff. Delay in decision on

tariff for year 2021-2022 will have huge financial implication. Since, there is no

violation of right of natural justice or Regulation 12 of MPERC, Regulations,

2015 and petitioner has sufficient opportunity to obtain copy of petition from

authority or to download it from website, therefore, petition filed by petitioner

may be dismissed.

6. Heard the counsel for the parties.

7. As per Regulation 7 of MPERC, Regulations, 2015 the distribution

licensee shall submit information and application for determination of Aggregate

Revenue Requirement (ARR) and tariff for tariff period along with document

mentioned in Regulation 7 of MPERC, Regulations, 2015. In Regulations 8, 9

and 10, of MPERC, Regulations, 2015 methodology of determination of tariff is

laid down. Regulation 12 of MPERC, Regulations, 2015 lays down for inviting

objections, public suggestions and hearing.

8. As per Section 64 of Electricity Act, 2003 an application for

determination of tariff is to be filed under Section 62 of Electricity Act, 2003 by

generating company or licensee along with document and fees prescribed in

regulation. Appropriate Commission within 90 days from receipt of application

under Sub Section (1) and after considering all the suggestions/objections

received from public to determine tariff for supply and wheeling of electricity.

Before determining tariff for supply and wheeling of electricity reasonable

opportunity of hearing shall be given to petitioner.

9. Regulation 12 of MPERC, Regulations, 2015 provides that Commission

shall invite suggestions and objections from the public for consideration before

determination of Aggregate Revenue Requirement (ARR) and tariff.

Commission may, if it considers necessary, conduct hearing of the stakeholders

on suggestions and objections submitted by them or may determine the ARR and

Tariff giving due consideration to the suggestions and objections received.

Public notice was published on Petition No.5/2021 on 12.02.2021. In Public

notice summary of Aggregate Revenue Requirement (ARR) for financial year

2021-2022 was also published and impact of revenue was also mentioned in

public notice. It is also mentioned in notice that copy of main petition along with

tariff proposal may be obtained in working days between 11:00am to 04:00pm

from 15.02.2021 form Commission Office or form Headquarters of MP Power

Management Company Limited, Shaktibhavan, Rampur on payment of

Rs.1,000/- by way of demand draft in favour of company, MPPMS. Said

document can also be downloaded free of charge at Commission website and

also from website of Power Management Company Limited. Notice was

published in English as well as in Hindi version. Last date for inviting

suggestions and objections was 08.03.2021. In view of said publication,

petitioner was having sufficient time to obtain copy of petition from the Office

of respondent No.2 or 3 or he can also download the same from the official

website, therefore, it cannot be said that due to paucity of time rights of natural

justice of petitioner has been violated. Respondents in its reply has submitted

that they are considering the objection and suggestions of petitioner. Since,

Objections and suggestions of petitioner is under consideration, therefore, it

cannot be said that there is violation of Regulation 12 of MPERC, Regulations,

2015.

10. Further Regulation 12 of MPERC, Regulations, 2015 provides that

Commission may, if it considers necessary conduct hearing of the stakeholders

on suggestions and objection. Rights of natural justice does not mean personal

hearing of a person. If objections and suggestions of a person is considered

rationally then it cannot be said that rights of natural justice is violated.

11. It is submitted by counsel appearing for respondent No.2 that objections

of petitioner is under consideration. Petitioner also has a remedy to prefer an

appeal if his objection and suggestions are not considered or decided adversely

by MPERC.

12. Time period is fixed for determining tariff for supply and wheeling of

electricity. All interested persons are invited to prefer suggestions and objections

to petition. Regulation 12 of MPERC, Regulations, 2015 calls for consideration

to objections and suggestions and Commission may give public hearing if it

considers it necessary. If objections and suggestions are considered objectively

and rationally by Commission mandate of Regulation 12 of MPERC,

Regulations, 2015 is fulfilled. Public hearing or personal hearing is at discretion

of Commission. If word "may" is read as "shall" then it will be counter

productive and lead to unnecessary delay in determination of tariff. Regulations

rightly provides discretion to Commission and it may give public hearing if it

thinks it necessary.

12. Considering the aforesaid facts and circumstances of the case, there is no

ground to interfere in the petition at present. Writ petition filed by the petitioner

is premature at this stage.

13. In view of above, writ petition filed by the petitioner is dismissed.

14. Petitioner will be at liberty to prefer an appeal if his objections are not

dealt with rationally and objectively by respondent No.2.

(VISHAL DHAGAT) JUDGE shabana

SHABAN Digitally signed by SHABANA ANSARI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482002, st=Madhya Pradesh,

A ANSARI 2.5.4.20=c333137a9dcc1cbb16eda2210935 04d5160044ddfe0db28fde957c744ce28123, cn=SHABANA ANSARI Date: 2021.06.14 17:32:05 +05'30'