Madhya Pradesh High Court
Nirmal Lohiya vs The State Of Madhya Pradesh on 23 June, 2021
Author: Chief Justice
WA No. 536/2021
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THE HIGH COURT OF MADHYA PRADESH: JABALPUR
(Division Bench)
Writ Appeal No. 536/2021
(Nirmal Lohiya Vs. State of Madhya Pradesh and others)
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Coram
Hon'ble Shri Justice Mohammad Rafiq, Chief Justice
Hon'ble Shri Justice Vijay Kumar Shukla, Judge
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Presence:
Shri Rahul Rawat, learned counsel for the appellant/writ-petitioner.
Shri Bramhadatt Singh, learned Government Advocate the respondent
No.1/State.
Shri Purushendra Kaurav, learned Advocate General/Senior Counsel
with Shri Aditya Khandekar, Advocate for the respondent No.2.
Shri Prakash Upadhyay, learned counsel for the respondents No.3 and 4.
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Whether approved for reporting: Yes
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Heard through Video Conferencing.
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ORDER
(23.06.2021)
Per: Mohammad Rafiq, Chief Justice:
This writ appeal is directed against an order dated 14.6.2021 passed by
the leaned Single Judge, by which Writ Petition No.5851/2021 filed by the
appellant challenging the action of the respondent No.2 in proceeding to
determine the electricity tariff of year 2021-2022 without giving an opportunity
of hearing to him, has been dismissed.
2. Appellant/writ-petitioner approached the writ Court for issuance of a
writ of mandamus commanding the respondent No.2-M.P. Electricity
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Regulatory Commission (for short "the Commission") to decide his
preliminary objections and provide him a copy of the petition and after giving
adequate opportunity of hearing, to decide the matter finally. The learned
Single Judge while issuing notice to the respondents on 16.3.2021 restrained
the respondent No.2-Commission from passing final order in Public Notice
(Petition No.5/2021), Reference No.MPERC/2021/265 in respect of ARR and
Tariff till next date of hearing. Respondents joined the writ petition and
submitted their reply refuting the averments of the writ petition.
3. Shri Rahul Rawat, learned counsel for the appellant has submitted that
the learned Single Judge has not correctly analysed the provisions of Section
64 of the Electricity Act, 2003 (for short "the Act of 2003") and Regulation 12
of the Madhya 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 (for
short "the MPERC Regulations, 2015"), which in fact mandated the Regulatory
Authority to provide opportunity of hearing to those who file
suggestions/objections. It is argued that the appellant applied for obtaining
copy of the petition filed by the respondents No.3 and 4 on 3.3.2021, but the
Commission provided him copy of the petition belatedly i.e. on 31.3.2021.
However, by that time, 08.03.2021, the date for filing objection, had gone.
Even though the appellant filed his preliminary objections but he could file a
detailed objection only after receiving copy of the petition. It is submitted that
the appellant also checked the website of the Regulatory Commission but he
could not find copy of the petition uploaded and only annexures thereof were
available on the website. Such fact was asserted in Para 5.12 of the
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memorandum of Writ Petition. Learned counsel for the appellant in support of
his arguments has cited judgment of the Supreme Court in West Bengal
Electricity Regulatory Commission Vs. CESC Ltd. reported as (2002) 8
SCC 715 and argued that the Supreme Court in the aforesaid case held that
when the statute itself confers a right of hearing to consumers in conformity
with the principles of natural justice, the Court cannot deny such right on the
ground of practical inconvenience. Reference, in particular, is made to
discussion in para 40 of the aforesaid judgment.
4. Shri Purushendra Kaurav, learned Advocate General submitted that the
learned Single Judge has not only properly considered the cited judgment of
the Supreme Court but also correctly analysed the ratio thereof. On that basis,
the learned Single Judge has rightly held that as provided in Regulation 12 of
the MPERC Regulation, 2015, the Commission may, if it considers necessary,
conduct hearing of the stakeholders on their suggestions and objections.
Appellant had filed his objections styled as 'preliminary objections' with the
Commission and that the Commission had given due consideration to his
objections. In the reply filed by the respondents, the assertion of the appellant
has been categorically refuted that copy of the petition filed by the respondents
No.3 and 4/Company was not provided to him. It was asserted that the copy of
the petition along with its annexures was made available on 12.2.2021 for
information in public on the official website of the MPERC as well as official
website of the Commission, both in English and Hindi Language, by providing
URL for MPERC website i.e. http://www.mperc.in/12022021-ARR%20-
%20Tariff%20petition%FY-2021-22.pdf. Learned Advocate General asserted
that the Regulatory Commission had provided/uploaded copy of petition along
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with all its annexures on their website. Therefore, it was for the appellant to
have timely obtained copy of petition, to submit any further and detailed
objections.
5. Learned Advocate General argued that in total 50
suggestions/objections, including that of the appellant, were received and the
Regulatory Commission fixed 9.3.2021 and 10.3.2021 as the dates for public
hearing. A general notice to this effect was published for information of all
concerned. In response to that, 9 persons participated in the hearing. The
appellant opted not to participate in the hearing for reasons best known to him,
for which the Commission cannot be blamed. Reference is made to the public
notice dated 12.2.2021, in which public hearing was fixed at 11 AM, both on
9.3.2021 and 10.3.2021, before the Commission. The respondent No.2 has
placed on record the said public notice dated 12.2.2021 as Annexure R/1 with
its reply. It is submitted that wide publicity was given to the notice of public
hearing, which was published in seven leading newspapers of the State i.e. Free
Press, Indore; Pradesh Today, Indore; The Hitavada, Jabalpur; Dainik Bhaskar,
Jabalpur; Dainik Bhaskar, Sagar; Peoples Samachar, Bhopal and Raj Express,
Gwalior. The respondent No.2 has also produced on record the list of 50
objectors, with their names and addresses, who submitted their
objections/suggestions vide Annexure R/2. It therefore cannot be said that the
appellant would be unaware of public hearing conducted after giving wide
publicity of the public notice. Learned Advocate General further contended
that on account of the interim order of stay, passed by the learned Single
Bench, which remained in operation for three months, the finalization of the
tariff by the Commission has already been delayed. Timely determination of
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the tariff is crucial for supply of the electricity to the consumers on equitable
rates. Therefore, the judgment passed by the learned Single Judge is just and
proper and does not call for any interference.
6. The cited judgment in West Bengal Electricity Regulatory
Commission Vs. CESC Ltd. reported as (2002) 8 SCC 715 was considered by
the learned Single Bench and the same has again been cited before us. Reliance
has been placed on what was held in para 40 of the judgment. The Supreme
Court in that case while interpreting Section 58 of the Electricity Regulatory
Commissions Act, 1998 and considering challenge to Regulations 25 and 31(4)
of the West Bengal Electricity Regulatory Commission (Conduct of Business)
Regulations, 2000, held that the Commission in discharge of its power under
Section 58 of the 1998 Act has framed the Regulations keeping in mind the
mandate of the Act. In Regulations 18, 19, 24, 25 and 31(4), the Commission
has evolved a procedure by which it could restrict the number of
representations as also the method to be followed in the proceedings before it
which includes the restriction on hearing. Regulations 18 and 19 required the
Commission to recognize such associations or other bodies of consumers
which in its opinion, should be permitted to appear before the Commission.
The said Regulations also empowered the Commission to regulate the nature
and extent of participation by such groups. Regulation 31(4)(ii) and (iii) therein
also empowered the Commission to control the proceedings before it. It is
evident from these observations that even in the cited judgment, the
Commission had the necessary power to regulate the proceedings of hearing
before it and the apprehension expressed by the appellant before the Supreme
Court that by granting such power, the Commission may have to hear all the 17
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lakhs of consumers of Calcutta, was held to be imaginary. The Supreme Court
held that the Commission had the necessary statutory power to frame the
Regulations conferring the right of hearing on the consumers and the
Regulations provided for a procedure for controlled hearing and therefore there
was no basis to assume that it would give rise to indiscriminate hearing. Thus,
the Regulations were held to be in conformity with the provisions of the Act.
7. In our view, the cited judgment does not in any manner help the
appellant-writ petitioner. On the contrary, the Supreme Court observed therein
that the relevant provisions give right to the Commission to have controlled
hearing in a regulated manner. Obviously the purpose of doing so is to expedite
the process of finalization of the tariff as per the Act and the Regulations. No
doubt, the Commission in its functioning has to ensure the transparency and
allow public participation but this has to be done within the limits of statutory
restrictions under Section 64 of the Act of 2003, with which we are concerned
in the present case too. Sub-section (3) of Section 64 provides that the
Appropriate Commission shall, within one hundred and twenty days from the
date of receipt of an application for determination of tariff under sub-section
(1) and after considering all suggestions and objections received from the
public, (a) issue a tariff order accepting the application with such modifications
or such conditions as may be specified in that order; (b) reject the application
for reasons to be recorded in writing if such application is not in accordance
with the provisions of this Act. Proviso to sub-section (3) of Section 64 of the
Act of 2003 stipulates that an applicant shall be given a reasonable opportunity
of being heard before rejecting his application.
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8. Regulation 12 of the MPERC Regulations, 2015, on which reliance has
been placed by the learned counsel for the appellant, also provides that in
accordance with the provisions of Section 64(3) (supra), the Commission shall
invite suggestions and objections from the public for consideration before
determination of ARR and tariff. Subsequently, the Commission may, if it
considers necessary, conduct hearing of the stakeholders on the suggestions
and objections submitted by them or may determine the ARR and Tariff giving
due consideration to the suggestions and objections received. The Commission
may also conduct hearing with the applicant as and when considered necessary.
The language employed in the Regulation 12 thus clearly conveys that
discretion has been given to the Commission to conduct hearing, if it considers
necessary, by giving opportunity of hearing to the stakeholders on suggestions
and objections submitted by them and after giving due consideration to the
suggestions and objections received, determine the tariff. Learned Single Judge
in our view was perfectly justified in holding that before determining the tariff
for supply and wheeling of electricity, reasonable opportunity of hearing has
been given to the appellant. In our view, when the considerations applicable to
hearing of application with reference to Section 64(3) have been by Regulation
12 (supra) applied to hearing of objections to the proposed tariff, the proviso
thereto, which postulates that a reasonable opportunity of hearing shall be
given to the applicant, shall also apply to objectors. In the facts of the case,
when the appellant has already submitted his objections, which he chose to
describe as 'preliminary objections' and did not make an endeavour to timely
obtain copy of the petition and file any further suggestions and objections, it
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cannot be allowed to say that it was not provided reasonable opportunity of
hearing.
9. In view of the aforesaid, reasonable opportunity of hearing, in our
opinion, has been provided to the appellant. There being no infirmity in the
impugned judgment, no case for interference is made out.
The writ appeal is accordingly dismissed.
(Mohammad Rafiq) (Vijay Kumar Shukla)
Chief Justice Judge
C.
Digitally signed by
CHRISTOPHER PHILIP
Date: 2021.06.28
19:26:04 +05'30'
