Orissa Consumers Association, Cuttack & Anr v. Orissa Electricity Regulatory Commission & Ors
AIR 2005 Ori 11
In the High Court of Orissa
W.P. (C) No. 7160 of 2004
A.K. PATNAIK AND A.K. PARICHHA, JJ
Decided on October 8, 2004
Relevancy of the case: Publication of regulations in electronic form is equivalent to information in written or typewritten form.
Statutes & Provisions involved:
o The Electricity Act, 2003(S. 64, S.181, S.182)
o The IT Act, 2000 (S.8)
o The O.E.R.C Regulations(terms and conditions for determination of tariff), 2004
o The O.E.R.C Regulations(Conduct of Business), 2004
Facts of the Case:
• Petitioner 1 is a society registered under the Societies Registration Act, 1860 whose job is to protect the rights, interest and welfare of consumers in the State. Petitioner 2 is a consumer of electricity.
• The GRIDCO (Grid Corporation of Orissa Limited) alias Respondent party supplied the electricity in bulk to four distribution Companies (other respondents) namely CESCO, WESCO, NESCO and SOUTHCO who further distributed electrical energy to the consumers in their respective areas of Orissa.
• The petitioner states that every year the tariff kept increasing without any improvement in service and also the hike was not in proportion to the earning capacity of the consumers.
• In December 2003, all the respondent companies had filed an application before the Electricity Commission for the determination of tariff to be charged upon electricity supplied to the consumers. In 2003, Electricity Act came into existence but the Commission had framed no regulations under the 2003 Act instead, the commission issued public notices inviting objections from consumers against the applications for fixation of tariff for 2004-2005.
• The petitioner wanted to quash the five public notices for determination of tariff and also prayed for a mandamus directing the commission to first frame regulations under the 2003 act and then furnish relevant information to the petitioner.
Prominent Arguments by the Advocates:
The commission filed a counter-affidavit stating that they framed proper regulations under the 2003 Act after which the petitioners amended their writ petition for quashing of the regulations by calling them invalid and inoperative.
¬ The counsel for the plaintiff pointed out that sec 181(3) of the act provides that all regulations must be subjected to the conditions of previous publication which has not happened in this case. He further stated sec 182 of the Act provides that the regulations made by the commission should be laid before the House of State Legislature as soon as it is made but it had not been laid within the prescribed period in acc. with sec 24A of Orissa General Clauses Act. Therefore he argued the regulations made by the commission are invalid.
¬ The petitioner counsel also argued that the commission cannot determine the tariff under sec 61, sec62, sec63, sec 64 of the Act unless it has properly framed the regulations specifying the terms and conditions for determination of tariff and specifying the manner in which the business of the commission is to be conducted. He further submitted that though notices had been published but the application of the licencees had not been published violating sec 64(2) of the Act.
¬ The opponent counsel objected to the contention of previous publications and also showed the attached annexures and copy of publication of regulations on their official gazette and after one day on official website thus pointing out sec 8 of the IT Act where publication of electronic gazette would be deemed to be available to all public and would have the equal status as official gazette.
¬ The respondent counsel also opposed the contention of laying regulations before parliament by stating the difference between s 176, s177, s 178, s 181 and s182 of the Act. When a regulation is laid before the parliament u/s 182 it acquires validity and is enforceable even if not laid before state legislative assembly and also produced SC case laws to support his argument.
¬ The counsel for the respondent also submitted that sec 64(3) of the act gives a time period of 120 days to the commission to decide tariff, issue public notices for objections and modifications etc. but it is directory in nature not mandatory therefore it can’t be said the regulations are invalid or void after expiry of the said time limit.
Opinion of the Bench:
The applications u/s 64 of the act has to be in conformity with the Ch. II and Ch. III of the O.E.R.C Tariff Determination Rules, 2004. Reg. 53 of Ch. III is not in conformity with sec 64(2) of the Act as the applications were not made available to the public. Also, the public was confused and not in a position to decide which regulations to refer-the previous one or the new one while giving suggestions or raising objections. Therefore, to avoid all confusion the court quashed all the notices and ordered the State Government to perform all the statutory duties as per the 2003 Act as expeditiously as possible.
Final Decision: Upheld. The court allowed the writ petition and quashed the notices.