Case: M/S Badri Kedar Paper Pvt.Ltd Vs. U.P.Electricity Regulatory Commn

Tata Power Co. Ltd. and Others [(2004) 1 SCC 195] , West Bengal Electricity Regulatory Commission v. CESC Ltd. [(2002) 8 SCC 715] and Association of Industrial Electricity Users v. State of A.P. and Others [(2002) 3 SCC 711]10. It was contended that in LML Ltd. (supra), the regulations framed by the State had inadvertently not been placed; from a perusal whereof it would appear that it was the Commission only who could amend the tariff.11. We are unable to agree with Mr. Misra on any of the aforementioned contentions.When questioned, Mr. Misra conceded that the affidavit affirmed in support of the representation filed by the appellant as regards payment of the amount had not been brought to the notice of the High Court. Concededly again it had also not been contended before the High Court that in view of the aforementioned event subsequent to the filing of the writ application by the appellant, the writ petition became infructuous. Had such contention been raised before the High Court, it might not have exercised its discretionary jurisdiction. Such a contention had not only been raised before the High Court, the respondent No. 1 allowed the High Court to determine the issues arising therein on their own merit, without any demur whatsoever.In our opinion, the respondent No. 1 cannot be permitted to raise such a contention before us for the first time. Even otherwise in the affidavit, the appellant merely stated that even if a stay order is granted by the High Court, the six-monthly instalments would be paid regularly. Appellant had not contended that the writ petition would be withdrawn or even if the writ petition is allowed, it would not ask for refund of the amount deposited. It is neither in doubt nor in dispute that such an undertaking had to be given by the appellant only with a view to avoid disconnection of electrical energy. If by reason of the circular impugned before the High Court, the appellant was entitled to maintain a writ application; by reason of such representation, it did not waive its right.12. In LML Ltd. (supra), this Court proceeded on the basis that it was the Commission alone who had the exclusive jurisdiction to determine the tariff. In view of the provisions of the 1999 Act as also the regulations framed thereunder, as the law stands now, there cannot be any doubt or dispute that the Commission alone has the exclusive jurisdiction and even for the purpose of modification and/ or alteration of tariff, the Commission must be approached.13. Submission of Mr. Misra that in paragraphs 43 and 44 of the judgment this Court had held that sub-section (6) of Section 24 of the 1999 Act empowers the holders of the licence to modify the tariff, is incorrect.The tariff in terms of Sub-section (6) of Section 24 has to be modified by the licensee albeit in terms of a direction issued by the Commission, wheretobefore all procedures laid down in that behalf in terms of the regulations are required to be complied with. The statement made in paragraph 44 of the said decision cannot be read in isolation.14. There cannot further be any doubt or dispute in view of the binding precedent of this Court in Tata Power Co. Ltd. (supra), CESC Ltd. (supra) and Association of Industrial Electricity Users (supra) that the Commission has the exclusive jurisdiction to determine the tariff.15. This Court in LML Ltd. (supra), however, proceeded to hold in favour of the consumers of electrical energy on the premise that the respondent No. 1 is bound by the doctrine of promissory estoppel. The matter as regards fulfillment of the conditions of licence granted by the Commission in favour of the licensee is a matter between the parties thereto. If the Corporation fails to comply with any of the conditions laid down in the licence or violates the tariff, the licence of the licensee may be revoked. A penal action may also be taken. But the same would not mean that the licensee can be permitted to take advantage of its own wrong. It can approbate and reprobate, particularly when it is the beneficiary thereof. [See Halsburys Laws of England, Fourth Edition, Vol. 16, pages 1012-1013, Nagubai Ammal v. B. Shama Rao (1956) SCR 451, C. Beepathuma v. Velasari Shankaranarayana Kadambolithaya (1964) 5 SCR 836 and Ambu Nair and Kelu Nair (1932-33) 60 Indian Appeals 266 at 271-272] It is furthermore well known that even a right under a mandatory provision can be waived. [See Babulal Badriprasad Varma v. Surat Municipal Corporation & Ors. 2008 (8) SCALE 206 ] If it had made a representation pursuant whereto or in furtherance whereof a consumer of electrical energy had altered its position, the doctrine of promissory estoppel shall apply. The doctrine of promissory estoppel, it is now well-settled, applies also in the realm of a statute. [See State of Punjab v. Nestle India Ltd. and Another (2004) 6 SCC 465 and Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ETIO and Others (2007) 5 SCC 447 ]16. It is not the contention of Mr. Misra that in the matter of implementation of tariff the doctrine of promissory estoppel will have no application. If it applies, correctness of LML Ltd. (supra) cannot be questioned.Furthermore, the Allahabad High Court in the first round of litigation was not required to go into the question as to whether the LML Ltd. could enforce a circular as against the Kanpur Electricity Supply Company although it did not make any representation. The question of the tariff prevailing over such circular did not arise therein as no such circular had been issued by the Kanpur Electricity Supply Company at all.17. The circular impugned before the High Court was undoubtedly issued pursuant to the judgment of the Division Bench of the Allahabad High Court but then whether having regard to the doctrine of promissory estoppel the same could have been withdrawn or not, further determination in that behalf was not warranted.18.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In our opinion, the respondent No. 1 cannot be permitted to raise such a contention before us for the first time. Even otherwise in the affidavit, the appellant merely stated that even if a stay order is granted by the High Court, the six-monthly instalments would be paid regularly. Appellant had not contended that the writ petition would be withdrawn or even if the writ petition is allowed, it would not ask for refund of the amount deposited. It is neither in doubt nor in dispute that such an undertaking had to be given by the appellant only with a view to avoid disconnection of electrical energy. If by reason of the circular impugned before the High Court, the appellant was entitled to maintain a writ application; by reason of such representation, it did not waive itsLML Ltd. (supra), this Court proceeded on the basis that it was the Commission alone who had the exclusive jurisdiction to determine the tariff. In view of the provisions of the 1999 Act as also the regulations framed thereunder, as the law stands now, there cannot be any doubt or dispute that the Commission alone has the exclusive jurisdiction and even for the purpose of modification and/ or alteration of tariff, the Commission must becircular impugned before the High Court was undoubtedly issued pursuant to the judgment of the Division Bench of the Allahabad High Court but then whether having regard to the doctrine of promissory estoppel the same could have been withdrawn or not, further determination in that behalf was not