Madras High Court
Saheli Exports Pvt.Ltd vs The Union Of India on 7 January, 2021
W.P.No.13064 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.01.2021
CORAM
THE HONOURABLE Mrs. JUSTICE PUSHPA SATHYANARAYANA
W.P.No.13064 of 2020
and
W.M.P. Nos.16193, 16195, 16196 and 16197 of 2020
Saheli Exports Pvt.Ltd.,
No.25, Sir Madhavan Nair Road,
Mahalingapuram,
Nungambakkam,
Chennai - 600 034 .. Petitioner
Vs.
1.The Union of India,
Represented by the Deputy Secretary to the
Government of India,
Ministry of Petroleum and Natural Gas,
Shastri Bhawan,
New Delhi - 110 001.
2.GAIL (India) Limited,
GAIL Building,
16, Bhikaji Cama Place,
R.K.Puam, Ring Road,
New Delhi - 110 066.
3.GAIL (India) Limited,
Represented by Zonal General Manager,
7A, Kences Towers, No.1, Ramakrishna Street,
North Usman Road, T.Nagar,
Chennai - 600 017. .. Respondents
***
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PRAYER : Writ Petition filed Under Article 226 of the Constitution of
India praying to issue a Writ of Certiorarified Mandamus, calling for
the records of the first respondent in F.No.L-12013/2/2015-GP-I
dated 11.09.2020 cancelling the allotment of natural as to the
petitioner made vide allotment letter dated 5.6.2000, which is being
used continuously by the petitioner for generating power at the
petitioner's power plant and consequently direct the first respondent
to restore the original allotment made to the petitioner.
***
For Petitioner : Mr.Vijay Narayan, SC
for Mr.P.Vinod Kumar
For Respondent-1 : Mr.G.Karthikeyan,
Assistant Solicitor General of India,
For Respondents
2 and 3 : Mr.P.V.S.Giridhar
for M/s.Giridhar and Sai
ORDER
The petitioner has sought for issuance of a Writ of
Certiorarified Mandamus to call for the records of the first
respondent in F.No.L-12013/2/2015-GP-I dated 11.09.2020,
cancelling the allotment of natural gas to the petitioner made, vide
allotment letter dated 5.6.2000, which is being used continuously by
the petitioner for generating power at petitioner's power plant and
consequently for a direction to the first respondent to restore the
original allotment made to the petitioner.
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2. The petitioner is a company incorporated under the
Companies Act, 1956, involving in the business of setting up power
plants and generating electricity. The petitioner also had set up a
natural gas based 8.8 MW power plant at Komal West Village,
Nagapattinam District. The natural gas is to be used as fuel at the
petitioner's power plant i.e., supplied by the second respondent.
The first respondent has granted permission to Oil and Natural Gas
Corporation (ONGC), which was selling gas directly to the
consumers till 1992. Pursuant to the Government Policy, it was
transferred to the second respondent/GAIL. The petitioner-
Company had set up its natural gas based power plant during April
2005. The entire natural gas supplied by the second respondent
had been used only for the purpose of generation of power.
However, originally, the petitioner had sought for allotment of
natural gas for generation of power, which was to be utilised for
manufacture of steel, which was to be set up by the petitioner.
Hence, it is understood that the gas supply was required by the
petitioner for the purpose of generation of power for its proposed
steel plant. On 23.12.1999, a request for allocation of natural gas
was made by the petitioner stating that the gas is for production of
power for utilising the same in its proposed steel plant. However,
in the allotment letter dated 05.06.2020, issued to the petitioner by
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the Ministry of Petroleum and Natural Gas, it is mentioned that the
gas allotment is for manufacture in the steel plant. The letter of
allocation dated 05.06.2000 had two conditions, ie., (i) the
petitioner should pay the relevant transportation charges and (ii)
the petitioner should enter into a gas supply contract with the
second respondent within 60 days, which means that there is no
condition with regard to use of gas.
3. Accordingly, a contract dated 06.10.2000 came to be
entered into between the petitioner and the second respondent.
The said contract clearly stated that the gas is to be used for
generation of power for use in the steel plant. It is stated that as
proposed, the steel plant did not take off. Since the steel plant
project was abandoned, the power generated in the plant using the
gas allotted to the petitioner, was sold to captive consumers
including a steel plant using the state grid. It is stated that the
subsequent amendment agreement dated 03.05.2003 with the
second respondent categorically stated that the gas allotted to the
petitioner is for use of fuel at its power plant.
4. The agreement period was originally for 10 years and
subsequently, it was renewed from 01.01.2011 till 31.12.2015 for a
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period of 5 years. The petitioner commenced drawal of gas alloted
from April, 2005. The agreement dated 23.12.2010 also recognizes
that the petitioner uses the gas as fuel for operating its power plant.
In fact, in the term of the agreement dated 23.12.2010, the
respondents took a stand that the discounted administered price
mechanism was not available to natural gas supply to power plants
supplying power to captive consumers. Based on such a stand, the
second respondent had issued a demand seeking differential price
for past supply of natural gas. When a demand seeking differential
price for past supply of natural gas was raised, the same was
referred to arbitral proceedings and an award, which partly allowed
the demand made by the second respondent, was set aside by this
Court. It is stated that though the said proceedings are not
relevant, it is mentioned that, because the parties were aware of
the fact that the gas was supplied only for the power plant, the
petitioner was always treated as a power sector industry.
5. As the agreement dated 23.12.2010 provided for extension
of term of supply, the petitioner sought for extension. Despite
several reminders, there was no response from the second
respondent. By a letter dated 20.12.2015, the second respondent
sought for a clarification from the competent authority with regard
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to extending the terms of supply, as the petitioner had been using
the natural gas for generation of power, instead of manufacture of
steel.
6. The petitioner also sent a representation on 21.12.2015 to
the first respondent to clarify the same to ensure continuity of gas
supply after 31.12.2015. The petitioner has also filed a Writ
Petition in W.P.No.41002 of 2015 seeking a direction to the first
respondent to issue necessary clarification to the second and third
respondents to ensure continuous gas supply to petitioner's power
plant, after the agreement period came to an end on 31.12.2015.
The Interim Order dated 29.12.2015 granted by this Court in
W.P.No.41002 of 2015, restrained the second respondent from
discontinuing the gas supply to the petitioner. The first respondent
reported to this Court that the amendments in the agreements
between the petitioner and the second respondent recognising the
use of the gas by the petitioner's power plant, was without the
knowledge of the first respondent. Therefore, it is stated that the
use of gas for generation of power is unauthorised and the
allocation is liable to be cancelled.
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7. Once again, the petitioner filed another Writ Petition in
W.P.No.13619 of 2016 to forbear the first respondent from
cancelling the allocation of natural gas. On 21.11.2019, this court
had directed the first respondent to consider the petitioner's
representations and pass orders and also directed the supply of
natural gas till the final decision is taken by the first respondent.
8. Accordingly, the first respondent called upon the
petitioner to attend the meeting on 07.03.2020, which was
re-scheduled to 12.03.2020, which was attended by the petitioner's
representative. The petitioner had also submitted a letter dated
11.03.2020, explaining the details relating to the allotment, the
earlier agreements, the communications between the petitioner and
the second and third respondents etc. During the meeting held on
12.03.2020, the nation wide lock down was announced due to
covid-19 pandemic and the petitioner also did not receive any
response from the respondents.
9. While so, on 11.09.2020, the petitioner received the
impugned order from the first respondent through e-mail, whereby,
the first respondent had cancelled the allotment of natural gas made
to the petitioner in the year 2000, based on which, the petitioner
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had set up its power plant. It is submitted by the petitioner that the
meeting, which the petitioner attended was before one Mr.Shyam
Singh Mahar, Deputy Secretary (GP-II), Government of India,
MOPNG. However, the impugned order had been issued by
Mr.Anand Kumar Jha, Deputy Secretary to Government of India,
MOPNG. It is stated that the impugned order is passed by an
Officer, who had not conducted the hearing on 12.03.2020. The
impugned order is challenged by the petitioner on several grounds
including that of violation of principles of natural justice.
10. The first respondent had filed its counter affidavit
stating that the amendments in the subsequent agreements relied
upon by the petitioner between the petitioner and the second
respondent, are without the knowledge of the first respondent. The
gas was alloted for the specific purpose of manufacture of steel in
the petitioner's proposed steel plant through its power plant. It is
specifically stated by the first respondent that the usage of
allocation of gas cannot be changed. The deviation from the terms
of allocation amounts to unauthorised use of gas, which is liable to
be cancelled.
11. So far as the violation of principles of natural justice is
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concerned, it is stated that the order impugned is an administrative
order/institutional decision of the first respondent, which has
already been established by the Hon'ble Supreme Court in the
matter of Kalinga Mining Corporation -vs- Union of India
reported in 2013 (5) SCC 252. Therefore, the petitioner cannot
maintain the present Writ Petition.
12. The second and third respondents also had filed the
counter affidavit admitting the fact that the gas was alloted for the
purpose of establishing steel plant only. Admittedly, till date, the
petitioner has not established the steel plant, but, instead, utilising
the gas supplied for the purpose of generating power, which was
sold to their customers for captive consumption. It is pointed out
that the change of user from the petitioner did not fall within the
present order of priority under the Union Government's Policy of
allocation.
13. Before dealing with the merits of the case on the facts,
the question of violation of principles of natural justice, as projected
by the petitioner, has to be dealt with.
14. The impugned order is challenged contending that the
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factual aspects prior to the renewal request was not considered. The
original allotment has been cancelled stating that the petitioner did
not set up its steel plant and the gas supply was used for generating
power, which is the purpose other than for which it was allotted.
The fact of not setting up of the steel plant by the petitioner, is
within the knowledge of the first respondent. Further, the original
supply of gas was for the specific purpose of generating power and
this usage was never changed by the petitioner.
15. The second reason for rejecting the request of the
petitioner based on the change in gas usage is also assailed by the
petitioner. It is pointedly argued that the order of priority in 2020
could not have been the basis for considering the case of the
petitioner, as the allotment to the petitioner dates back to 2000
based on the then existing Policy under which power sector was
priority sector. Hence the petitioner cannot be treated as a fresh
applicant for a fresh allotment. Therefore, the current order of
priority cannot be a factor to reject the case of the petitioner and
cancel the original allotment dated 05.06.2000.
16. The first respondent submitted that the supply of natural
gas was approved on firm basis in favour of the petitioner only for
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the manufacture of steel in the steel plant proposed to be set up in
Kutthalam Zone, subject to the condition that the gas would be
used for the manufacture of steel only. The first respondent, vide
letter No.L-12011/5/01-GP(vii) dated 16.08.2001, approved the
extension of contractual date of drawal by one year. Further, vide
letters dated 28.04.2004 and 01.12.2004, the first respondent
conveyed approval of the Government to extend the date of gas
drawal to 30.06.2004 and 31.12.2004 respectively.
17. It is stated by the first respondent that in the Gas Supply
Contract (GSC) dated 06.10.2000 entered into between the second
respondent and the petitioner for supply of 35,000 SCMD, the usage
of gas had been modified as fuel for production of power for
manufacture of steel in the steel plant. As per contract, the gas
supply was to commence from 31.12.2002 and the contract was
valid upto 31.12.2010. Upon request by the second respondent, the
first respondent approved the extension of the contractual date of
gas supply directly by one year on 16.08.2001. Thereafter, an
amendment to Gas Supply Contract was signed on 03.05.2003
between the second respondent and the petitioner, in which, the
usage of gas had been changed as “for supply of gas for petitioner’s
proposed power plant”. The first respondent also conveyed the
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approval of the Government to extend the date of gas directly. An
amendment to gas supply contract was made on 21.02.2005
extending the gas drawal date to 31.12.2004. However, the usage
of gas was again amended, as gas to be used as fuel for its power
plant. After the Gas Supply Contract expired on 31.12.2010,
another GSTA (Gas Sales and Transmission Agreement) was
executed on 23.12.2010, which was valid upto 31.12.2015. Even in
the said GSTA dated 23.12.2010, it was mentioned that the
petitioner owns and operates the power plant using gas for
industrial application as feed and/or fuel.
18. The first respondent therefore specifically pleaded
ignorance about the change of usage of gas as has been carried out
in the agreements without their knowledge. As of now, the current
gas utilization Policy allocation is sector specific and priority to a
particular sector had been accorded, based on its contribution to
economy and policy of the Government.
19. The learned counsel for the second respondent contended
that the petitioner-Company had admittedly breached its own
promise to set up a steel plant, on the basis of which, they sought
allocation of gas. Having failed to set up a steel plant for which they
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got allocation of gas, the petitioner-Company cannot be permitted
to take advantage of its own wrong. Mere fact that the allocation of
order itself does not mention the purpose of the request, does not
invalidate the impugned order. It was further contended by the
second respondent that despite several requests, the petitioner
failed to produce the representation of the petitioner that the
allocation letter had been amended in respect of the purpose. As
the petitioner failed to produce the same, the contract was not
renewed after 31.12.2015.
20. The second respondent, being the distribution agent of the
Government, cannot supply gas contrary to the terms of allocation,
much less without an order of allocation. The second respondent
further mentioned that it is bound by the Doctrine of Public Trust,
which the petitioner had breached.
21. The contention of the petitioner is that the act of the first
respondent-Union of India, is arbitrary, because, though it was
aware of the fact that the petitioner-Company was using the gas for
generating the power, it never raised any issue. The petitioner-
Company also had invested huge sums of money in setting up the
power plant with continuous of supply of gas till 2015. While so,
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sudden revocation of the same based on the ground that there is a
major anomaly in the use of gas by the petitioner, is unacceptable.
In fact, the second respondent recognized that the petitioner is
supplying the power generated at the plant to the TNEB grid for
supply to consumers. It is the stand of the petitioner-Company that
only when the petitioner-Company challenged the second
respondent’s attempt to retrospectively change the price of gas
supplied in the past and initiated arbitration with regard to gas
supply for generation of power instead of using it for manufacture of
steel, which was projected as a major anomaly and hence refused
to renew the contract.
22. In the above backdrop of the case, it is time to consider
the impugned order, which, according to the petitioner-Company,
did not consider any of the facts. The original allotment had been
cancelled by stating that the petitioner did not set up a steel plant
and that by using the gas for generating power, the petitioner has
denied the allotment for different use. The learned counsel for the
petitioner-Company argued that though the steel plant was not set
up, which is a fact noted by the first respondent-Union of India, the
allotment of gas itself is only for generating power, which was to be
used for steel plant. Therefore, when the petitioner had used the
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gas supply only for generating power, it cannot be said that the
petitioner used it for a different purpose. Secondly, so far as the
priority prevailing in 2020 is concerned, the allotment of the
petitioner dates back to 2000 and the Policy prevailing in 2000 is
applicable. Admittedly, it is not a fresh allotment made to the
petitioner, but it is only a renewal or extension of the existing
allotment. Hence, rejection of the petitioner’s case is only an
extraneous factor and that cannot be the reason for cancelling the
allotment made in the year 2000.
23. Be that as it may, the impugned order is assailed on the
ground of violation of principles of natural justice. It is alleged by
the petitioner-Company that in its representation dated 11.03.2020
that the second respondent-GAIL, New Delhi, had not been sharing
the communications exchanged between the first respondent-Union
of India and the second respondent-GAIL, New Delhi, with regard to
the petitioner-Company’s contract. As these documents reveal the
factual position that the respondents were aware of the usage of the
gas by the petitioner, though on 21.11.2019, this Court directed the
first respondent to afford an opportunity of hearing to the petitioner
before passing any orders, the first respondent-Union of India had
not heeded to the request of the petitioner-Company for furnishing
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the documents to the petitioner-Company. Without the documents
being furnished to the petitioner, there could not have been
meaningful hearing, as directed by this Court. Hence, the
petitioner-Company has stated that, in the absence of the relevant
documents, there was no proper hearing.
24. Secondly, it is specifically pointed out that even assuming
that there was a hearing, the impugned order was not passed by
the Officer, who conducted the hearing on 12.03.2020. The
petitioner-Company was issued with notice to appear before Mr.Shri
Shyam Singh Mahar, Deputy Secretary, Government of India,
MOPNG. Accordingly, the petitioner-Company’s representative
appeared before the above said officer and submitted the
representation dated 11.03.2020. However, the impugned order
was passed by one Mr.Anand Kumar Jha, Deputy Secretary,
Government of India, MOPNG, which is blatant violation of the
principles of natural justice. The said Officer never heard the
petitioner before passing any order.
25. In this regard, the learned counsel for the petitioner-
Company relied on a decision of the Supreme Court reported in
2011 (2) SCC 258 [AUTONOTIVE TYRE MANUFACTURERS
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ASSOCIATION –VS – THE DESIGNATED AUTHORITY AND OTHERS],
wherein, in paragraphs 77, 80 to 84, it had been held as follows:
"77. It is trite that rules of “natural justice” are not
embodied rules. The phrase “natural justice” is also not
capable of a precise definition. The underlying principle of
natural justice, evolved under the common law, is to check
arbitrary exercise of power by the State or its functionaries.
Therefore, the principle implies a duty to act fairly i.e. fair
play in action. In A.K. Kraipak [(1969) 2 SCC 262] , it was
observed that the aim of rules of natural justice is to secure
justice or to put it negatively to prevent miscarriage of
justice.
80. It is thus, well settled that unless a statutory
provision, either specifically or by necessary implication
excludes the application of principles of natural justice,
because in that event the court would not ignore the
legislative mandate, the requirement of giving reasonable
opportunity of being heard before an order is made, is
generally read into the provisions of a statute, particularly
when the order has adverse civil consequences which
obviously cover infraction of property, personal rights and
material deprivations for the party affected. The principle
holds good irrespective of whether the power conferred on a
statutory body or Tribunal is administrative or quasi-judicial.
It is equally trite that the concept of natural justice can
neither be put in a straitjacket nor is it a general rule of
universal application.
81. Undoubtedly, there can be exceptions to the said
doctrine. As stated above, the question whether the principle
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has to be applied or not is to be considered bearing in mind
the express language and the basic scheme of the provision
conferring the power; the nature of the power conferred and
the purpose for which the power is conferred and the final
effect of the exercise of that power. It is only upon a
consideration of these matters that the question of
application of the said principle can be properly determined.
(See Union of India v. Col. J.N. Sinha [(1970) 2 SCC 458] .)
82. In the light of the aforenoted legal position and the
elaborate procedure prescribed in Rule 6 of the 1995 Rules,
which the DA is obliged to adhere to while conducting
investigations, we are convinced that duty to follow the
principles of natural justice is implicit in the exercise of power
conferred on him under the said Rules. Insofar as the instant
case is concerned, though it was sought to be pleaded on
behalf of the respondents that the incumbent DA had issued
a common notice to the advocates for ATMA and Ningbo
Nylon, for oral hearing on 9-3-2005, however, there is no
document on record indicating that pursuant to ATMA's letter
dated 24-1-2005, notice for oral hearing was issued to them
by the incumbent DA. Moreover, the alleged opportunity of
oral hearing on 9-3-2005, being in relation to the price
undertaking offer by Ningbo Nylon, cannot be likened to a
public hearing contemplated under Rule 6(6) of the 1995
Rules.
83. The procedure prescribed in the 1995 Rules imposes a
duty on the DA to afford to all the parties, who have filed
objections and adduced evidence, a personal hearing before
taking a final decision in the matter. Even written arguments
are no substitute for an oral hearing. A personal hearing
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enables the authority concerned to watch the demeanour of
the witnesses, etc. and also clear up his doubts during the
course of the arguments. Moreover, it was also observed in
Gullapalli [AIR 1959 SC 308] , if one person hears and other
decides, then personal hearing becomes an empty formality.
84. In the present case, admittedly, the entire material
had been collected by the predecessor of the DA; he had
allowed the interested parties and/or their representatives to
present the relevant information before him in terms of Rule
6(6) but the final findings in the form of an order were
recorded by the successor DA, who had no occasion to hear
the appellants herein. In our opinion, the final order passed
by the new DA offends the basic principle of natural justice.
Thus, the impugned notification having been issued on the
basis of the final findings of the DA, who failed to follow the
principles of natural justice, cannot be sustained. It is
quashed accordingly."
26. The learned counsel for the petitioner-Company also relied
on a judgment of the Supreme Court reported in 2014 (6) SCC 564
[UNION OF INDIA AND OTHERS –VS- SHIV RAJ AND OTHERS],
wherein, it has been held as follows:-
"17. This Court in Gullapalli Nageswara Rao [Gullapalli
Nageswara Rao v. A.P. SRTC, AIR 1959 SC 308] , held: (AIR
p. 327, para 31)
“31. … Personal hearing enables the authority concerned
to watch the demeanour of the witnesses and clear up
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his doubts during the course of the arguments, and the
party appearing to persuade the authority by reasoned
argument to accept his point of view. If one person
hears and another decides, then personal hearing
becomes an empty formality. We therefore hold that the
said procedure followed in this case also offends another
basic principle of judicial procedure.”
18. This Court in Rasid Javed v. State of U.P. [(2010) 7
SCC 781 : AIR 2010 SC 2275] following the judgment in
Gullapalli Nageswara Rao [Gullapalli Nageswara Rao v. A.P.
SRTC, AIR 1959 SC 308] , held that: (Rasid Javed case
[(2010) 7 SCC 781 : AIR 2010 SC 2275] , SCC p. 796, para
51)
“51. … a person who hears must decide and that
divided responsibility is destructive of the concept
of judicial hearing is too fundamental a proposition
to be doubted.”
19. A similar view has been reiterated by this Court in
Automotive Tyre Manufacturers Assn. v. Designated
Authority [(2011) 2 SCC 258] , wherein this Court dealt with
a case wherein the designated authority (DA) under the
relevant statute passed the final order on the material
collected by his predecessor-in-office who had also accorded
the hearing to the parties concerned. This Court held that the
order stood vitiated as it offended the basic principles of
natural justice.
20. In view of the above, the law on the issue can be
summarised to the effect that the very person/officer, who
accords the hearing to the objector must also submit the
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report/take decision on the objection and in case his
successor decides the case without giving a fresh hearing,
the order would stand vitiated having been passed in
violation of the principles of natural justice."
27. Per contra, the learned counsel appearing for the second
and third respondents-GAIL had placed reliance on the judgment of
the Supreme Court reported in 2013 (5) SCC 252 [Kalinga Mining
Corporation –vs- Union of India and Others]. It is useful to extract
paragraphs 66 and 67 of the said judgment, as under:
"66. Upon conclusion of the arguments by the parties,
Mr.S.P.Gupta, Joint Secretary who had heard the parties
prepared the note running into 19 pages (from pp. 30-49)
containing 47 paragraphs of original record. The note has
been duly signed by Mr.S.P. Gupta, Joint Secretary on 17-9-
2001. The High Court further noticed that in fact this is the
report which had been duly approved by the Secretary on
18-9-2001 and by the Central Government Minister on
25-9-2001. While making the endorsement of the approval,
the Secretary has written as under:
“I endorse fully the above note of the Joint Secretary.
This is a very old case in which the parties have
repeatedly recourse to the courts. As such (sic) even now
near litigation may follow. Therefore the decision of the
Central Government has to be in terms of a speaking
order which is backed by facts and law.”
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67. The High Court further notices that the impugned
Order dated 27-9-2001 is, in fact, a verbatim copy of the
report/note prepared by Mr.S.P.Gupta, Joint Secretary. Upon
examination of the entire matter, the High Court has
concluded that the Order has been signed by Mr R.P. Khatri
merely to communicate the approval of the Central
Government to the parties."
28. The above decision of the Hon'ble Supreme Court
reported in 2013 (5) SCC 252, is distinguished by the learned
counsel for the petitioner-Company pointing out that the minutes of
the meeting on 12.03.2020, which was reduced to writing in the
form of record of discussion, was considered by the Officer, who
passed the order. In the absence of any material or record to
substantiate the same, it is evident that the decision taken by the
Officer is not the same Officer, who conducted the hearing on
12.03.2020. Therefore, the dictum laid in the said decision reported
in 2013 (5) SCC 252 is not applicable to this case.
29. So far as the Doctrine of Public Trust is concerned, in the
absence of any evidence or materials to show that there was any
default on the part of the petitioner, the Doctrine of Public Trust is
inapplicable.
30. The impugned order dated 11.09.2020 was passed by the
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Deputy Secretary to the Government of India, namely Mr.Anand
Kumar Jha, whereas the representative of the petitioner-Company
had appeared before one Mr.Shyam Singh Mahar, Deputy
Secretary(GP-II) of the first respondent-Union of India. Pursuant to
the directions given by this Court, the Government of India is
hearing the petitioner-Company for the purpose of renewal of the
allocation of supply of gas. Though the petitioner was given a
personal hearing, the same was not complete, as the necessary
communications between the first respondent-Union of India and
the second respondent-GAIL, New Delhi, were not furnished to the
petitioner-Company.
31. Secondly, the same officer, who heard on 12.03.2020 had
not passed the impugned order dated 11.09.2020. Even presuming
that the hearing given by Mr.Shyam Singh Mahar be deemed to be
a hearing, the same is vitiated due to the fact that the orders were
passed by one Mr.Anand Kumar Jha, when the hearing was not yet
over on 12.03.2020. As the communications between the first
respondent-Union of India and the second respondent-GAIL, New
Delhi were not furnished to the petitioner-Company, it should be
deemed that the petitioner-Company was not even heard. Even if a
Government, be it a State or Central, is an impersonal body and
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W.P.No.13064 of 2020
hearing through Machinery is prescribed by law and discharging only
Administrative acts and not Judicial acts in the matter of approving
the allocation of supply of gas, the same Officer, who heard the
matter, should have passed the final orders on the issue in
question. The first respondent-Union of India had lost sight of the
fact that if a statutory authority has power to do any act, which will
prejudicially affect its subject, though there is no other respondents,
but in this writ petition, the Union of India and GAIL are
respondents. Any final determination by the authorities of the first
respondent-Union of India and the second respondent-GAIL, New
Delhi, is quasi-judicial in nature, the authority is expected to act
Judiciously.
32. Admittedly, when the same officer, who heard the
personal hearing, had not passed the impugned order, the
impugned order itself is vitiated and the same is liable to be set
aside only on that limited ground. Therefore, the order impugned is
accordingly set aside, remitting the matter back to the first
respondent-Union of India for fresh consideration. It is also open to
the petitioner-Company to file a fresh representation and the first
respondent-Union of India and the second respondent-GAIL, New
Delhi, are directed to furnish the required/relevant communications
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W.P.No.13064 of 2020
between them with regard to the issue in question, before the date
of hearing, to the petitioner-Company. Once the petitioner-
Company is furnished with the copy of the said communications
within the reasonable time, the hearing may be held and the
appropriate orders be passed, after affording an opportunity of
personal hearing to the petitioner-Company by permitting them to
mark the documents and put-forth their arguments. However, the
entire exercise has to be completed within a period of 12 weeks
from the date of receipt of a copy of this order.
33. So far as the claim of non-payment of money by the
petitioner-Company, it is seen that pending the writ petition,
pursuant to the interim order passed on 17.09.2020, the second
and third respondents have supplied gas to the petitioner-Company,
for which the payment had not been received from the petitioner-
Company despite receipt of invoices. Hence, a memo was filed by
the second and third respondents dated 08.12.2020. In response,
a memo dated 14.12.2021 was filed on behalf of the petitioner. The
petitioner has stated that a total sum of Rs.42,35,432/- was
charged as per the invoices raised by the second respondent. Out
of which, a sum of Rs.28,92,478/- has been recovered by the
second respondent by invoking the letter of credit issued by the
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W.P.No.13064 of 2020
petitioner-Company. Hence, there was a balance amount of
Rs.13,80,994/- was pending, which according to the petitioner-
Company, there was a dispute regarding the same. However, on
10.12.2020, the petitioner-Company had received an intimation
from its bank that the said remaining amount of Rs.13,80,994/- was
also recovered by the second respondent on 07.12.2020 by
invoking the letter of credit issued by the petitioner-Company.
Therefore, it is recorded that the entire invoice amount raised by
the second respondent for the supply of gas pursuant to the interim
direction given by this Court has been received by the second
respondent.
34. With the above observations and directions, the Writ
Petition is disposed of. No costs. Consequently, the connected
miscellaneous petitions are closed.
07.01.2021
srn
To
1.The Union of India,
Represented by the Deputy Secretary to the
Government of India,
Ministry of Petroleum and Natural Gas,
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W.P.No.13064 of 2020
Shastri Bhawan,
New Delhi - 110 001.
2.GAIL (India) Limited,
GAIL Building,
16, Bhikaji Cama Place,
R.K.Puam, Ring Road,
New Delhi - 110 066.
3.GAIL (India) Limited,
Represented by Zonal General Manager,
7A, Kences Towers, No.1, Ramakrishna Street,
North Usman Road, T.Nagar,
Chennai - 600 017.
PUSHPA SATHYANARAYANA, J.
srn
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W.P.No.13064 of 2020
W.P.No.13064 of 2020
and
W.M.P. Nos.16193, 16195,
16196 and 16197 of 2020
Date : 07.01.2021
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W.P.No.13064 of 2020
W.P.No.13064 of 2020
PUSHPA SATHYANARAYANA,J.
Pending the writ
petition, by virtue of the
interim order, the petitioner
had uninterrupted gas supply
from the second and third
respondents. After
pronouncing the order, the
petitioner made a request
that such arrangement can
continue. It is open to the
petitioner to approach the
second and third respondents
in this regard at the earliest
and the same may be
considered by them.
07.01.2021
pm (2/3)
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