Hon'ble Attau Rahman Masoodi,J.
This set of writ petitions involve a common question of law, as such, the writ petitions were heard together and are being decided by a common judgment.
We have heard Sri Mayank Agrawal, learned counsel for the petitioners as well as Sri Nripendra Mishra, Sri Chandan Agrawal and Sri Shivam Yadav learned counsel appearing for the respondents Corporation and perused the record.
The dispute in all the writ petitions is confined to the applicability of the revised tariff as was finally determined by the U.P. Electricity Regulatory Commission on 19.10.2012 (annexure-2) and published by U.P. Power Corporation on 23.10.2012 (annexure-3) and notified by the Corporation on 25.10.2012 (annexure-4). In the publication order made by the respondent Corporation on 23.10.2012, at the foot of publication notification, it is mentioned that the revised rates would be applicable w.e.f. 1.10.2012. Relevant noting in the said publication is quoted below:
"The above Rate and Charges as approved by U.P. Electricity Regulatory Commission shall become applicable with effect from 1st October, 2012 in all four DisComs and KesCo. The approved tariff order and Rate schedule are also available at the website of U.P. Power Corporation Ltd. & U.P. Electricity Regulatory Commission at www. uppcl. org & www. uperc.org respectively."
The dispute arises as to the retrospective application of the revised rates of tariff w.e.f. 01.10.2012. The learned counsel for the petitioners while assailing the retrospective application of the tariff notification published and notified on the respective dates i.e. 23.10.2012 and 25.10.2012 respectively has submitted that the revision of tariff as per law cannot be made applicable retrospectively. In this regard, the learned counsel for the petitioners drew our attention to the various provisions of law which we may refer to for the purposes of adjudicating the controversy at hand.
In the first place, the learned counsel for the petitioners drew our attention to Section 24 (7) of the U.P. Electricity Reforms Act, 1999 and the same is reproduced below.
"24(7) Each holder of supply license shall publish in at least two daily newspapers, widely circulating in the area of supply, and made available to the public on request, the tariff for the electricity within its area of supply and such tariff shall come into force after seven days from the last date of such publication, and any tariff implemented under this Section,-
(a) shall not show any preference of favour to any consumer of electricity, but may differentiate on the ground of the consumer's load factor, or purpose of use of power factor, the consumer's total consumption of electricity during any specified period, or the time during which the supply is required;
(b) shall be just and reasonable and be such as to promote economy and efficiency in the supply and consumption of electricity; and
(c) shall accord with all other relevant provisions of this Act and the conditions of license."
In the year 2003, the Electricity Act, 2003 came into force and as per the provisions of the Act, the supply of electricity to the consumers at large for the purposes of tariff is subjected to Section 62 of the Electricity Act, 2003, according to which, the power is vested in the State Regulatory Commission to determine the tariff for the purposes of retail sale. The tariff framed by the Commission is sent to the Power Corporation for publication in accordance with U.P. Electricity Regulatory Commission (Conduct and Business) Regulations, 2004. Learned counsel for the petitioners has referred to Regulation 138 and 139 which are reproduced below:
"138. (1) Subsequent to the licensee furnishing the complete information required by the Commission, and upon hearing the licensee and other interested parties, the commission shall make an order and notify the applicant of its decision on the revenue calculations and tariff proposals.
(2) while making an order under(1) above or at any time thereafter the commission may notify the tariff which the licensee or generating company shall charge from different categories of consumer in the ensuing financial year. Any Order issued by the Commission shall be published by the Licensee in the prescribed manner, unless an appeal or review is preferred by the Licensee against the Order.
139. (1) The licensee or the generating company shall publish the tariff or tariffs approved by the Commission in at least two daily newspapers (one English and one Hindi) having circulation in the area of supply as provided in subsection (7) of Section 24 of the U.P. Electricity Reforms Act. The publication shall, besides other things as the Commission may require, include a general description of the tariff amendment and its effect on the clauses of the consumer.
(2) The tariffs so published under (1) above shall become the notified tariffs applicable in the area of supply and shall come into force after seven days from the last date of such publication of the tariffs, and shall be in force until any amendment to the tariff is approved by the commission and published. The Commission shall, within seven days of making the order, send a copy of the order to the state Government, the Authority, the concerned licensees and to the person concerned."
In the backdrop of statutory provisions extracted above, U.P. Power Corporation has also promulgated Electricity Supply Code 2005 for the purposes of carrying out the objects of Electricity Act, 2003 and other laws applicable in this behalf. Clause 3.8 of the Electricity Supply Code 2005 for ready reference is reproduced below:
"3.8 Charges for Supply
(a) Tariff and other charges for the supply of electricity shall be announced by the Licensee with the approval of the Commission in accordance with Section 24 of the U.P. Electricity Reforms Act, 1999 to the extent consistent with provisions of the Electricity Act, 2003. Such tariffs or charges shall take effect only after seven days from the date of publication in at least two daily Newspapers having wide circulation in the area of supply."
A plane reading of the relevant provisions of law reproduced hereinabove lead to a clear conclusion that the revision of tariff as may be promulgated by the Commission when published and notified by the U.P. Power Power Corporation shall not be made applicable retrospectively so long as the statute permits to do so or the intention of statute is capable of such an interpretation. In the present case there is a clear bar under the statute to enforce the revision of tariff notification retrospectively.
In support of the contention made by the learned counsel for the petitioners, he has relied upon a judgement of the Hon'ble Supreme Court reported in 2009 11 (SCC) 244, Binani Zinc Limited Vs. Kerala State Electricity Board and Others, wherein the Hon'ble Supreme Court in para 36 of the judgement has observed as under:
" The commission has been empowered to frame tariff. It has, however, not been empowered to frame tariff with retrospective effect so as to cover a period before its constitution. The matter might have been different if such a power had been conferred on the Commission. It is now a well settled principle of law that the rule of law inter alia postulates that all laws would be prospective subject of course to enactment of an express provisions or intendment to the contrary."
The observations made by the Hon'ble Apex Court clearly support the stand advanced by the counsel for the petitioners and contrary view in the facts and circumstances of the case cannot be possibly taken.
The learned counsel for the respondents tried to defend the validity of the tariff notification primarily on the ground that the petitioners have an alternative remedy before the Tribunal. However, no satisfactory explanation could be advanced as to the authority under which the impugned notification was made applicable retrospectively.
The argument of an alternate remedy at this stage of proceedings carries no weight particularly when the pleadings between the parties have already been exchanged and the question involved in the writ petition is a pure question of law. Even otherwise, the respondent corporation clearly lacks legal authority under which it could enforce the impugned notifications retrospectively. Therefore, the plea of alternative remedy cannot be construed to be a bar for entertaining the present writ petitions under Article 226 of the Constitution of India In view of the position of law stated above, there is merit in the contention of the learned counsel for the petitioners and challenge to the retrospective application of the impugned notifications is liable to succeed.
In the result, writ petitions are allowed to the extent that the revised tariff promulgated by the U.P. Electricity Regulatory Commission on 19.10.2012, published on 23.10.2012 and notified on 25.10.2012 shall be affective from 1.11.2012 and the applicability of the tariff as notified from 1.10.2012 retrospectively is thus, quashed. The amount, if any, realized from the petitioners treating the tariff effective from 01.10.2012 shall be adjusted by the respondent corporation in the future bills of the respective petitioners in the bunch of writ petitions mentioned hereinabove.
Order Date :- 1.4.2014 Sanjeev (Attau Rahman Masoodi,J.) (Vineet Saran,J.)