1. This writ petition has been filed by petitioner challenging the order passed by the Electricity Ombudsman dated 30.04.2008 in Appeal No. 44 of 2007: Chandra Mohan Goyal Vs. Executive Engineer, Urban Distribution Division, Aligarh by which he has rejected the appeal against the order dated 11.10.2007 passed by the Presiding Officer of Consumer Grievance Redressal Forum, Aligarh and also the recovery notices dated 12.01.2007 and 06.05.2008.
2. The facts relevant for decision of this controversy are to the effect that there were two service connections in the name of Chandra Mohan Goyal bearing Account No. 37470 and in the name of his mother Smt. Pista Devi Account No. 25524. These two electricity connections were in the same premises of the petitioner and related to Steel Rolling Mill owned by him. Two Circulars dated 15.10.1998 and 07.04.1999 were issued under Section 29-B of the Indian Electricity Act and the U.P. Electricity (Regulation of Supply, Distribution, Consumption and Use) Order, 1977 as amended in 1984, which related to charging of penalty and disconnection of supply, summarily without notice, such installations as are found upon inspection made by the officers of the Electricity Department to have contravened the provisions of these orders. Not only was the consumer liable for disconnection, he was also to be charged penalty.
3. At first, the Corporation in order to check the malpractice adopted by the consumers installed electronic meters from which computerized data could be downloaded for 35 days which would show the details of the consumption including any violation of peak hours restriction in last 35 days. Thereafter the Board issued a Circular on 15.10.1998 to the effect that the penalty for peak hours restriction will be imposed as per the meter reading inspection report. In another Circular issued on 07.04.1999 it was provided that for violation of peak hours restriction on the basis of Meter Reading Inspection Report (hereinafter to referred as MRIR) for the first time, one penalty for one month may be imposed on the first bill. However, for the second bill and thereafter, the procedure for penalty will remain the same as mentioned in the Circular dated 15.10.1998.
4. There was some doubt regarding the penalty to be charged for violation of peak hours consumption restriction, and as per the Power Corporation each peak hour violation was liable for one penalty after the first such MRI report. Some consumers challenged the penalty clause and its interpretation by the Corporation by filing writ petitions at Lucknow. The Division Bench of this Court at Lucknow interpreted the Circulars dated 15.10.1998 and 07.04.1999 by holding that the Circular dated 7th of April, 1999 had only provided that on the basis of first Meter Reading Inspection Report the consumer will be saddled with penalty for one violation in one month. But thereafter, on the basis of the MRI report penalty again can be taken for repeated violation as per Circular dated 15.10.1998.
5. This judgment of the Court sitting at Lucknow on 19.03.2001 was not brought to the notice of this Court sitting at Allahabad and in writ petitions filed at Allahabad namely Writ Petition No. 41013 of 2000 : M/s. India International Exports (MBD) Versus State of U.P. and others this Court sitting at Allahabad by its judgment and order dated 25.05.2001 after considering the two Circulars dated 15.10.1998 and 07.04.1999 took the view that in view of the later Circular, the consumer could not be levied with penalty for each alleged contravention but penalty should be levied only once on the basis of MRI report which stores data for 35 days. It directed that each MRI would be treated as one contravention irrespective of fact that in the MRI report a number of contraventions might have been recorded of peak hour restrictions. One MRI for 35 days was to be construed as one contravention only.
6. Aggrieved by the order dated 25.05.2001 passed by this Court at Allahabad a Special Leave Petition was filed before the Supreme Court which was entertained. The Supreme Court considered the question in paragraph - 6 thus:-
"The question before us is limited. Whether one meter reading inspection report which can download 35 days data should be construed as single violation of peak hour restrictions irrespective of actual number of contravention that might have been made by consumer during 35 days. In fact, the Division Bench has referred to two circulars dated 15.10.1998 and 7.4.1999. Learned counsel for the appellants submitted that both the circulars have been misinterpreted by the Division Bench. It was never meant that one report shall be constructed to be one contravention only though the consumer might have contravened peak hour restrictions number of times during the 35 days. As against this, learned counsel for the respondents supported the judgment of the Division Bench of the High Court."
7. The Supreme Court considered several appeals filed by the U.P. Power Corporation Limited and delivered its judgment on 25.07.2006 reported in (2006) 7 SCC 220, U.P. Power Corporation Limited and another Vs. Lohia Brass (P) Ltd. and others. The Supreme Court held that the interpretation given by the Lucknow Bench to the two Circulars was correct and it was inferred that it was not brought to the notice of this Court sitting at Allahabad. In paragraph - 8 of the said judgment the Supreme Court observed thus:-
"A perusal of both these notifications makes it very clear that by communication dated 7.4.1999 the only relief was given was for one time and it was not meant to give relief for all times to come. For violation of restrictions of peak hours on the basis of M.R.I. report for the first time, one penalty for one month may be imposed in the bill. For second bill and thereafter the procedure of penalty will remain same as mentioned in circular dated 15.10.1998. Therefore, according to the circular dated 15.10.1998, whenever M.R.I. computer print is taken, the number of violations by consumer shall be taken to be as many time as indicated in M.R.I. and it was clearly mentioned that there will be no relaxation nor the violations will be considered to be as one violation and will be treated separately. It was also mentioned that the S.D.O., Junior Engineer and Lineman in whose area the violation has been committed by the consumers should be considered to be penalized at the Chief Engineer level because of their failure to stop the violation. The circular also further clarified that whenever M.R.I. has not been got done in time, the temporary disconnection, on the basis of situation of the case can be considered. But at least 5 days disconnection penalty will be imposed for the first disobedience. Therefore, reading of these two circulars makes it very clear that for violation of restrictions of peak hours on the basis of M.R.I. report for the first time, one penalty for one month was to be imposed in the bill. Therefore, by the circular dated 7.4.1999 one time concession was given to the consumers but it was not meant to be for all time to come. Both these circulars clearly contemplate that for each contravention penalty will be levied and not simply because the violations have been recorded in one M.R.I. report, therefore, the same will be considered to be as one violation. Hence, the view taken by the Division Bench of the Allahabad High Court is prima facie not borne out on reading of these circulars. Therefore, we are of opinion, the view taken by the Division Bench of the Allahabad High Court cannot be sustained. "
8. The judgment dated 25.05.2001 passed by the Division Bench of this Court at Allahabad had been subsequently followed in several writ petitions filed by several consumers. Several Special Leave Petitions were filed by the appellant Corporation against all such orders and all such appeals were connected and decided as a Bunch Case, the leading case of which was U.P. Power Corporation Limited and another Vs. Lohia Brass (Pvt.) Limited and others. The judgment rendered in Lohia Brass (Pvt.) Limited (supra) was later on followed by the Supreme Court in U.P. Power Corporation Limited and others Vs. Bonds and Beyonds (India) (P) Ltd. decided on 24.09.2007 reported in (2007) 7 SCC 779. It was again observed that each contravention of peak hours consumption restrictions penalty had to be levied separately. All such violations cannot be read together only because the violations have been recorded in one MRI report, they cannot be considered as one violation.
9. In the case of petitioner, in pursuance of the Circulars dated 15.10.1998 and 07.04.1999, the demand notices were issued in November, 2001. The provisional demand notice dated 26.11.2001 for Service Connection No. 37470 in the name of Chandra Mohan Goyal for peak hour restrictions violation amounting to Rs. 1,62,880/- was issued along with the electricity consumption charges of Rs. 5,97,017/-. A similar demand notice was issued for Service Connection No. 25524 in the name of Smt. Pista Devi, the mother of petitioner, showing the peak hour violations for the past 12 months and a penalty of Rs. 1,12,840/- along with electricity charges of Rs. 4,72,623/- was imposed. The total amount due was shown against the consumer as Rs. 5,85,463/-.
10. Only fifteen per cent of amount of both these bills was deposited by the petitioner after a provisional oral agreement between him and the Executive Engineer, Electricity Urban Distribution Division - I, to avoid the possibility of disconnection.
11. The petitioner has filed several documents in his writ petition to show that before the Executive Engineer accepted the provisional deposit of 15 per cent of the amount, he had undertaken several correspondences with the Deputy General Manager, Electricity Urban Distribution Division, Aligarh and Deputy General Manager in his turn had undertaken such correspondences with the Chief Engineer (Commercial). It has been submitted in the writ petition, that in pursuance of the oral agreement a No Dues Certificate was issued with respect to the Service Connection No. 25524 to Smt. Pista Devi, the mother of petitioner and both the connections were amalgamated and mutated in the name of one consumer, Chandra Mohan Goyal and his sanctioned load in respect of his earlier connection of 124.352 KVA was amalgamated with the sanctioned load of the connection in the name of his mother of 84.851 KVA and the total sanctioned load in the name of petitioner now became 209.203 KVA. A letter in this regard was also issued by the Executive Engineer of EUDD - I, the respondent No. 3 on 03.08.2004.
12. It has been submitted that the enhancement of the load order meant that under Clause 4.43 (e) of the Electricity Supply Act, 2005 there was no arrears of electricity charges pending. The respondent No. 3 had taken approval for waiver of MRI penalties from his higher-ups and therefore, did not show any liability for payment of penalty for peak hour violation and in the Ledger Book the amount of peak hour penalty was deleted before issuing No Dues Certificate with regard to the Service Connection No. 25524.
13. It has further been submitted that petitioner's factory shifted to the Industrial Area Developed by the U.P. State Industrial Development Corporation thereafter and the Service Connection No. 37470 was permanently disconnected on 24.08.2005. A letter issued by the respondent No. 3 in this regard on 07.07.2007 has been filed as Annexure - 14 to the writ petition.
14. It has been submitted that on 12.01.2007 after two years of the respondent No. 3 issuing the permission for disconnection, a demand notice was issued of Rs. 16,30,551/- towards the MRI penalty, as finally settled by the Chief General Manager (Commercial), U.P. Power Corporation Limited, Lucknow in his letter dated 15.03.2003.
15. It has been submitted that after finalization of the agreement and settlement of the dues between the parties, no such demand notice could have been issued on 12.01.2007.
16. Another such demand notice was issued on 07.07.2007 under Section 3 of the U.P. Government Electricity Undertaking Recovery of Dues Act, 1958 amounting to Rs. 16,46,980/-. Against such demand notice the petitioner filed a Complaint Case No. 28 of 2007 before the Electricity Consumer Disputes Redressal Forum Aligarh on 21.08.2007. However, the said Complaint Case of the petitioner was rejected by the Forum on 11.10.2007.
17. The appeal of the petitioner before the Electricity Ombudsman filed thereafter was not being considered on its merit, nor the application for interim relief was being entertained, therefore, the petitioner filed a writ petition before this Court at Lucknow and Writ Petition No. 5723 of 2007 : Chandra Mohan Goyal Vs. Electricity Ombudsman, U.P., Lucknow was disposed off on 30.11.2007, with the direction to the Electricity Ombudsman to consider the pending appeal of the petitioner and pass an order within three days on the Application for interim relief moved by the petitioner therein.
18. In pursuance of the such order passed by this Court finally disposing off the writ petition on 30.11.2007, the Electricity Ombudsman, respondent No. 4, directed the petitioner to deposit fifty percent of the amount shown in the demand notice and fixed the date for hearing as 08.11.2007. The petitioner deposited Rs. 8,23,511 in compliance of the order passed by the Electricity Ombudsman dated 05.11.2007 on 15.11.2007.
19. The appeal was heard thereafter by the Electricity Ombudsman and on 30.04.2008 the same was rejected with a direction that the balance amount of Rs. 8,23,455/- and odd may be deposited by the petitioner within one month thereafter. In compliance of the said order, the respondent No. 3 issued a demand notice on 06.05.2008 showing the balance amount as Rs.8,23,455/-, which was later once mentioned as Rs. 8,62,485/- in the demand notice issued on 22.05.2008.
20. It has been submitted that the order passed by the Electricity Ombudsman is against the law as it takes into account the judgment of the Hon'ble Supreme Court rendered in Lohia Brass (Pvt.) Limited (supra) on 25.07.2006 and in Bonds and Beyonds (India) (P) Limited dated 24.09.2007. The judgments of the Supreme Court cannot disturb an earlier settlement and cannot force the Power Corporation to reopen the case with regard to the demand notices issued in November and December, 2001 which had attained finality after the settlement.
21. It is the case of the petitioner that the Forum as well as Ombudsman failed to appreciate that the judgment of the Supreme Court in the aforecited cases would apply for cases coming thereafter, and not to the cases which were decided earlier. The Forum as well as the Ombudsman wrongly observed that in case the petitioner is aggrieved, he should approach the Hon'ble Supreme Court for necessary relief as the judgment of the Hon'ble Supreme Court had settled the law regarding the interpretation of two Circulars and it was binding under Article 142 of the Constitution of India on all Subordinate Courts and Authorities. It has been submitted that the Power Corporation Cannot go back on the settlement it reached with the petitioner. Moreso when the petitioner was not a party in the writ petition which was decided by this Court at Allahabad and against which the Power Corporation had approached the Supreme Court.
22. After the writ petition was filed the petitioner filed two supplementary affidavits in quick succession on 24.06.2008 and 25.06.2008 alleging that the dues against the petitioner had been finally settled by the Deputy General Manager (Commercial) on 15.03.2003 and in pursuance thereof the petitioner had cleared the dues by depositing all the amounts as demanded.
23. This Court while entertaining the writ petition on 26.06.2008 directed that no further recovery be made from the petitioner pursuant to the impugned exercise till the next date of listing. This time bound interim order was extended on various dates and was confirmed on 03.09.2008 till further orders. Recovery has remained stayed in pursuance of the interim order passed by this Court.
24. A counter affidavit along with Stay Vacation Application was filed by the Corporation wherein the Corporation clearly stated that the allegations of the petitioner are misleading in the writ petition. There was no settlement arrived at as alleged by the petitioner between the respondent No. 3 and the consumer. The matter with regard to the interpretation of the two circulars regarding the peak hour restriction violation was still subjudice and the General Manager (Commercial) was the final authority for deciding the penalty payable by the consumer for peak hour violation. It referred to the letter issued by the Deputy General Manager (Commercial) to the respondent No. 3 , the Executive Engineer, indicating that he had without any authority reduced the amount of penalty payable by seven consumers including the petitioner and his mother. It referred to Annexure - 10 to the writ petition dated 03.02.2003 and Annexure - 12 to the writ petition dated 20.08.2003. A show cause notice was issued to the respondent No. 3 regarding the waiver of Rs.42,45,417/-.
25. It has been specifically submitted in the counter affidavit that no final demand of penalty was made by the Officer authorized to do so, and only electricity charges with respect to the consumer were charged before the permission for mutation of the consumer's name from Smt. Pista Devi to the writ petitioner was made.
26. In the counter affidavit a copy of the termination notice with regard to the petitioner's connection after the Factory stood transferred to the U.P. State Industrial Area developed by the U.P.S.I.D.C., has been filed showing the dues of Rs.16,30,551/- on the date of actual disconnection i.e. on 24.08.2004. It has been submitted that the notice dated 07.07.2007 included the demand of pending bills/assessment on account of peak hour restriction violations for a sum of Rs. 15,70, 805/- on both the connections i.e. Service Connection No. 37470 and 25524.
27. In the counter affidavit the respondents have referred to the law settled by the Hon'ble Supreme Court regarding the penalty to be imposed on peak hour restriction violations and the question of law framed by the Hon'ble Supreme Court and its answer thereafter in paragraphs - 8 and 9 of the judgement in Lohia Brass (supra). It has been submitted that the judgment of the Supreme Court has been rendered in rem after due consideration of two circulars and that it was binding under Article 141 of the Constitution of India.
28. It has also been submitted that in pursuance of the interim order of the Electricity Ombudsman dated 05.11.2007 the petitioner had paid fifty per cent of the demand amounting to Rs. 8,23,500/- on 19.11.2007 and before the writ petition could be taken up and interim order granted, a further payment of Rs. 1,50,000/- had been made towards the remaining amount of Rs.8,23,000/- and odd. The petitioner was liable to pay Rs. 6,73,455/- only as he had already made payment of Rs. 9,73,500/- before the interim order was granted.
29. The paragraphs in the writ petition relating to the oral settlement being arrived at between the Executive Engineer after permission from the Deputy General Manager (Commercial) have been specifically denied as misleading and false and reference has been made again and again to the record.
30. A rejoinder affidavit has been filed by the petitioner again referring to the fact that the issue had already been settled between the parties and could not be reopened merely on the ground that some consumers went to the Supreme Court and lost the case. It has been reiterated that the judgment of the Supreme Court dated 25.07.2007 will apply prospectively and there was no direction of the Court for reopening the already settled matters.
31. Mr Ranjit Saxena, learned counsel for the petitioner has argued that once on the basis of Metre Reading Inspection Reports certain penalty was indicated as liable to be charged from the petitioner, and that liability was later on reduced by the Department itself, and in pursuance of such reduction, the petitioner deposited the required amount of Rs. 1,12,485/- with regard to one connection, and Rs. 87,820/- with regard to the second connection, and the matter was settled in 2003 with the consent of the Chief General Manager; no notice could have been issued again after the judgment of the Hon'ble Supreme Court in U.P. Power Corporation Ltd. and another vs Lohia Brass (P) Ltd. and others, 2006 (7) SCC 220, which was later on also followed by the Hon'ble Supreme Court in its other judgments in U.P. Power Corporation Ltd. and others vs Bonds and Beyonds (India)(P) Ltd., 2007 (7) SCC 779, it was not open for the Department to reopen the matter already settled as the judgment of the Hon'ble Supreme Court will only act prospectively and cannot have retrospective effect. Moreso, when at the time of settlement of penalty and sur-charge with respect to peak hour violations as per MRI reports in 2003-2004, no such condition was mentioned in the orders reducing liability of the petitioner as consumer. In fact the petitioner's load was additionally sanctioned thereafter showing "No Dues" liability.
32. Learned counsel for the petitioner has also relied upon section 56(2) of the Electricity Act, 2003 and paragraph 6.15 of the UP Electricity Supply Code, 2005 to buttress his argument that since liability seized to be shown in the bill, it could not be revived later on by means of the orders impugned. He has pointed out paragraphs 13 and 14 of the writ petition and also the order of Chief General Manager dated 15.03.2003 mentioned in Annexure - 12 to the writ petition.
33. Mr Mata Prasad, learned counsel for the respondents, on the other hand, has argued that bills were never finalized, only recommendation was made by the Executive Engineer as is evident from the report submitted by the Executive Engineer at page 72 of the writ petition. At page 72 is the letter dated 20.08.2003, wherein the Deputy General Manager has written to the Executive Engineer saying that the Executive Engineer should explain as to how with respect to seven consumers he has reduced liability from more than 42,00,000/- to less than 6,00,000/-.
34. Mr Mata Prasad has also argued that there was no consent of the Chief General Manager as alleged to have been given on 15.03.2003 to the action of the Executive Engineer in making such a recommendation. There is no written approval of the Chief General Manager at any point of time to the reduction of the liability as proposed by the Executive Engineer.
35. Moreover, the liability for payment of penalty and sur-charge with respect to peak hour violation has to be interpreted on the basis of the Circular dated 07.04.1999. The Circular dated 07.04.1999 was interpreted in one way by this Court in a Division Bench judgment, which was followed for quite sometime by other Benches of this Court and several appeals were filed before the Hon'ble Supreme Court challenging such interpretation given by the High Court. The Hon'ble Supreme Court in its judgment in Lohiya Brass (P) Ltd. (supra) has held that the interpretation given by the Division Bench was clearly wrong and has remanded the matter back for reconsideration afresh.
36. Mr Mata Prasad has also argued that under section 56(2), the liability, which cannot be reopened, relates to charges for electricity supply and not to a penalty or a surcharge.
37. In this case, the penalty was charged on the basis of Circular dated 07.04.1999 with regard to peak hour violations.
38. Moreover, Mr.Mata Prasad has submitted that the matter regarding the petitioner remained pending and was never finally settled. The petitioner himself approached the Electricity Consumer Redressal Forum and thereafter the Ombudsman and the Ombudsman has dealt with the very same argument raised by the learned counsel for the petitioner herein in his impugned order dated 30.04.2008 and the order of the Ombudsman being a reasoned and speaking order ought not to be interfered with by this Court.
39. In rejoinder Mr Ranjit Saxena, learned counsel for the petitioner has argued that the MRI report has been made the basis of liability being imposed upon the consumer, but such MRI report was never given to the petitioner, in fact no show cause notice with regard to penalty being imposed on the basis of MRI report was ever issued to the petitioner. Therefore, he had no opportunity of hearing and the liability was fixed unilaterally by the Department.
40. This Court after considering the rival submissions made by the counsel for the parties and after going through the order passed by the Forum and by the Electricity Ombudsman challenged in this writ petition along with the demand notices, has to consider the argument regarding the prospective operation of law settled by the Hon'ble Supreme Court and whether the judgment rendered by the Supreme Court in Lohiya Brass (Pvt.) Limited (supra) and Bonds and Beyonds (supra) would apply only prospectively?
41. It is settled law that all the judgments rendered by the Courts of law are retrospective in nature unless made specifically prospective by the order of the Court.
42. In Union of India Vs. Mohd. Ramzan Khan, 1991 (1) SCC 588 the Hon'ble Supreme Court held that there were many judgments rendered by different High Courts following 42nd Amendment taking the view that it is no longer necessary to furnish a copy of the inquiry report to the delinquent officer. However, in the judgment in Mohd. Ramzan Khan the earlier decisions were held to be no longer laying down good law and at the same time it was held that the law as laid down in Mohd. Ramzan Khan shall have prospective application and no punishment already imposed shall be open to challenge on this ground. The judgment rendered in Mohd. Ramzan Khan was specifically made prospective in its application.
43. In Managing Director, ECIL Versus B. Karunakar 1993 4 SCC 727 the law as laid down in the Union of India Vs. Mohd. Ramzan Khan was explained and limited by the Constitution Bench of the Supreme Court. It held that the law was in an unsettled condition till 20th November, 1990 on which date Mohd. Ramzan Khan's case was decided. Therefore, the decision in Mohd. Ramzan Khan's case was made the law with prospective operation i.e. it was made applicable to the orders of punishment passed after 20 November, 1990. The law laid down was not applicable to the orders of punishment passed before that date not withstanding the fact that proceedings out of the same were pending in Courts. After that date, such proceedings had to be decided according to the law prevalent prior to the said date which did not require the authority to supply the copy of the Enquiry Officer's report to the employee. The only exception to this Rule was where the Service Rules with regard to the disciplinary proceedings itself made it obligatory to supply a copy of the report to the employee.
44. The Constitution Bench referred to the judgment rendered in I.C. Golak Nath and others Vs. State of Punjab 1967 AIR 1643 dealing with the question as to whether the decision in that case should be given prospective or retrospective operation. It referred to the essential distinction between the Constitution and Statutes. Since the Constitution is a dynamic document and is amenable to a pragmatic interpretation in changed circumstances, the Court felt that it must evolve some doctrine which has it roots in reason and precedents, so that past may be preserved and future protected. The Court then referred to two doctrines familiar to American Jurisprudence viz. one is described as Blackstonian theory and the other as "prospective over-ruling", which may have some relevance to the present enquiry.
45. Blackstone in his Commentaries, (15th Edn., 1809) stated the common law rule that the duty of the Court was "not to pronounce a new rule but to maintain and expound the old one". It means the Judge does not make law but only discovers or finds the true law. The law has always been the same. If a subsequent decision changes the earlier one, the latter decision does not make law but only discovers the correct principle of law. The result of this view is that it is necessarily retrospective in operation.
46. On the other hand, Justice Cardozo, had expounded the doctrine of "prospective over-ruling" and suggested it as "a useful judicial tool" in Great Northern Railway v. Sunburst Oil and Refinery Company, 287 U.S. 358 (1932) as a pragmatic solution reconciling the two conflicting doctrines, namely, that a court finds law and that it makes the law. It was observed that if the Court finds the law but restricts its operation to the future, it enables the court to bring about a smooth transition by correcting its errors, without disturbing the impact of those errors on the past transactions. It is left to the discretion of the court to prescribe the limits of the retroactivity and thereby it is able to mould the relief to meet the ends of justice.
47. In India there is no statutory prohibition against the court refusing to give retroactivity to the law declared by it. Especially when the High Court decides erroneously and the Supreme Court corrects it. Articles 141 and 142 enable the Supreme Court to formulate the legal doctrines to meet the ends of justice, limiting them only with reason, restraint and sense of justice. The Supreme Court was free to declare the law and give such direction or pass such an order as it deemed necessary to do complete justice. The Constitution Bench first applied the doctrine of prospective overruling evolved by the Courts in USA in Golaknath case by observing that the doctrine of prospective overruling can be invoked in a matter arisen under the Constitution and could be applied only by the Highest Court of the country i.e. the Supreme Court as it has the constitutional jurisdiction to declare the law binding on all Courts in India. The scope of the retrospective operation of the law declared by the Supreme Court superseding its earlier decisions, is left to its discretion to be moulded in accordance with- the justice of the cause or matter before it.
48. The Court in Managing Director ECIL (supra) then declared that the decision in Golak Nath (supra) set aside the Constitution (Seventeenth Amendment ) Act, 1964 and the other amendments made to the Constitution taking away or abridging the Fundamental Rights prospectively only to avoid difficulty in overturning all administrative actions taken on the basis thereof. The Court also declared that in future the Parliament will have no power to amend Part - III of the Constitution so as to take away or abridge the Fundamental Rights.
49. It was observed by the Hon'ble Supreme Court that the doctrine of prospective overruling has since been expounded for the interpretation of ordinary statute as well, in Waman Rao Vs. Union of India, 1981 (2) SCC 362 and Atam Prakash Vs. State of Haryana, 1986 (2) SCC 249. The laws passed by the Legislatures of Maharashtra and Punjab were declared ultra-vires but device of prospective overruling was resorted to. Even while applying prospective overruling the Supreme Court has sometimes given benefit to the appellant who approached it challenging the earlier settled position in law and bringing the error to its notice.
50. The direction with regard to the prospective operation of law laid down in Mohd. Ramzan Khan was followed by various Benches of the Supreme Court in S.P. Vishwanathan Vs. Union of India, 1991 Supp (2) SCC 269; Union of India Vs. A.K. Chatterjee, (1993) 2 SCC 191; and Managing Director, ECIL Vs. B. Karunakar, (1993) 4 SCC 727. The Supreme Court observed that to reopen all disciplinary proceedings concluded before the law was laid down in Mohd. Ramzan Khan, would result in grave prejudice to the administration which will far outweigh the benefits to the employees concerned. Therefore, taking into account both the administrative reality and public interest, the law with regard to the furnishing inquiry report as settled in Mohd. Ramzan Khan was specifically made prospective, while still extending the benefit to Mohd. Ramzan Khan.
51. I have referred to the judgements rendered in Service Jurisprudence only to emphasize that the law declared by the Hon'ble Supreme Court or even by the High Court in extra-ordinary writ jurisdiction, is retrospective unless specifically made prospective.
52. In this case, where the interpretation to the two Circulars dated 15.10.1998 and 15.04.1999 was involved, the interpretation was given by the Supreme Court to the language used in the said Circulars, thus, declaring that the penalty to be imposed was to be separately imposed for each peak hour restrictions violation. Had it not been so, then, the litigants before the Supreme Court would also not have got the benefit of the order passed by the Supreme Court. The law was declared with regard to the penal charges, as it had always been, except for the incorrect interpretation given by the Allahabad High Court in the judgment and order impugned dated 25.05.2001.
53. The Court did not establish a new norm, nor did it say that the interpretation given by it to the Circulars dated 15.10.1998 and 07.04.1999 will not apply to the past transactions or would apply prospectively to the transactions in future only. The doctrine of "prospective overruling" limits applicability to future situations and excludes situations which had arisen before the decision was rendered. It was for the Supreme Court to declare that its decisions in Lohiya Brass (supra) would operate prospectively. It did not say so. However, this is no to say that the Supreme Court could not have limited the operation of law as settled by it, with regard to the interpretation of the Circulars dated 15.10.1998 and 07.04.1999 making the operation of such interpretation prospective, thus, denying the relief to the Corporation with regard to transactions already completed, but it consciously chose not to do so.
54. From a perusal of the documents filed along with the writ petition and the counter affidavit, this Court is convinced that the liability regarding the penal charges was never finally settled by the Chief Engineer (Commercial). Show cause notice was therefore issued to the respondent No. 3 by the Deputy General Manager (Commercial) with regard to the reduction of liability suo motu with respect to seven consumers. It has come out also in the pleadings in counter affidavit that five of such consumers have already paid up the penalty imposed after the judgement rendered by the Supreme Court on 25.07.2006 was followed and demand notices were issued to them by the Corporation.
55. The impugned orders passed by the Consumer Grievance Redressal Forum Aligarh and by Electricity Ombudsman do not suffer from any infirmity in law in view of the law settled by the Supreme Court as discussed above.
56. The writ petition is devoid of merit and is dismissed.
57. No order as to costs.
Order Date :- 20.12.2018 LBY