Case: M/S STAR WIRE (INDIA) VIDYUT PVT LTD Vs. HARYANA ELECTRICITY REGULATORY COMMISSION

by the Commission in the suo moto proceedings initiated by it for revision of norms (for tariff operation for the second control period commencing from 1 st April, 2013). That order runs into over 100 typed pages and has analysed the necessity of revision vis¬à-vis each head to be reckoned for determination of tariff. The appellants had participated in the said proceedings. However, the stand taken by the appellants did not commend to the Commission, as can be discerned from the discussion in the order passed by it on 4 th August, 2015. Further, it was open to the appellants to approach the Commission by way of a review if they had any reservation with regard to the view taken by Commission in the said order. It was also open to the appellants to file appeal against the said order. However, without resorting to such remedies, the appellants chose to file writ petition and have raised grounds which are untenable in light of the discussion recorded by the Commission in its order dated 4 th August, 2015. It is certainly not a case of hostile discrimination considering the fact that Commission has recorded tangible reasons as to why the applicability of the revised regulations was required to be made prospective in respect of projects commissioned during FY 2013¬14. It is urged that the exercise of power in framing regulations ¬ be it principal Regulations or impugned Amended Regulations ¬ in terms of Section 61 read with Section 181 of the Electricity Act, 2003 permits classification on the basis of the date of commissioning of the project during the relevant period and which may inevitably result in providing for two sets of tariffs during the same control period. It is submitted that even though the impugned judgment of the High Court is brief, the conclusions reached therein are unexceptionable and therefore, this appeal ought to be dismissed. 8. After perusing the impugned judgment, we have no hesitation in taking the view that the High Court has committed manifest error or so to speak, failed to exercise jurisdiction vested in it for adjudicating the relevant issues raised by the appellants. For, there is hardly any intelligible discussion in the impugned judgment in that regard. If we may say so, it is cryptic and cannot stand the test of judicial scrutiny. We say so because, up to paragraph 9 of the judgment the High Court has only reproduced the rival stand. Paragraph 11 refers to the relevant provisions. Paragraph 12 is mere narration of some facts concerning this case. Paragraph 13, broadly refers to the purport of the provisions in the principal Regulations and the impugned Amended Regulations. The discussion with regard to the merits of the challenge, can be discerned only from paragraph Nos.14 and 15 reproduced hitherto. Paragraph 14 even if fairly analysed, merely adverts to the argument of discriminatory application of regulations qua the appellant company and proceeds to reject the same. No logic can be deduced as to why the Court was persuaded to reject the argument despite the multifaceted issues raised by the appellants. The second sentence in the said paragraph then proceeds to record that the control period may be from FY 2013-14 onwards, however, the impugned Amended Regulations envisage application of revised norms to projects commissioned in FY 2013¬14 prospectively from the date of notification of the impugned Amended Regulations. In other words, the High Court has not analysed the grounds of challenge regarding the validity of the impugned Amended Regulations and including the competency to frame such a regulation, appropriately. Strikingly, the High Court then straightaway proceeds to examine the second contention raised by the appellants in reference to the third proviso in the principal Regulations providing for adjustments as per revised regulations. The Court merely noted that the appellants failed to point out any prejudice caused to them because of exclusion from the benefit flowing from the principal Regulations. The appellants, on the other hand, have invited our attention to the specific grounds taken by the appellants in the writ petition and also noted in the order of the Commission dated 4 th August, 2015 and additionally articulated in the ground No. B of the special leave petition, giving comparative chart indicating substantial disparity regarding the norms applicable as per principal Regulations and the impugned Amended Regulations. In other words, the argument of prejudice was raised by the appellants to the detail but the High Court has failed to deal with the same, to say the least satisfactorily. Similarly, the detail arguments regarding the validity of the impugned Amended Regulations and the competency to frame such a regulation has not been analysed by the High Court.9. Suffice it to observe that the discussion in two paragraphs (para 14 and 15), to say the least, is one of disposing of the writ petition in a most casual and cavalier manner. That cannot be countenanced. Having said this, we are of the considered opinion that it would be appropriate to relegate the parties before the High Court for fresh consideration of the writ petition on its own merits in accordance with law. We refrain from expressing any opinion either way on the merits of the controversy or the grounds of challenge regarding the impugned Amended Regulations. In other words, the High Court must consider all relevant aspects of the matter agitated by the appellants and deal with the same appropriately in accordance with law.10. For completion of the record, we must note the decision of the Constitution Bench of this Court in PTC India Ltd. Vs. Central Electricity Regulatory Commission, Through Secretary (2010) 4 SCC 603 , which has held that the challenge to the validity of the regulations can be decided only in judicial review proceedings before the courts and not by way of appeal or review. The appellants having invoked such a remedy before the High Court, all contentions available to the appellants in that regard ought to have been adjudicated in proper perspective.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]8. After perusing the impugned judgment, we have no hesitation in taking the view that the High Court has committed manifest error or so to speak, failed to exercise jurisdiction vested in it for adjudicating the relevant issues raised by the appellants. For, there is hardly any intelligible discussion in the impugned judgment in that regard. If we may say so, it is cryptic and cannot stand the test of judicial scrutiny. We say so because, up to paragraph 9 of the judgment the High Court has only reproduced the rival stand. Paragraph 11 refers to the relevant provisions. Paragraph 12 is mere narration of some facts concerning this case. Paragraph 13, broadly refers to the purport of the provisions in the principal Regulations and the impugned Amended Regulations. The discussion with regard to the merits of the challenge, can be discerned only from paragraph Nos.14 and 15 reproduced hitherto. Paragraph 14 even if fairly analysed, merely adverts to the argument of discriminatory application of regulations qua the appellant company and proceeds to reject the same. No logic can be deduced as to why the Court was persuaded to reject the argument despite the multifaceted issues raised by the appellants. The second sentence in the said paragraph then proceeds to record that the control period may be from FY 2013-14 onwards, however, the impugned Amended Regulations envisage application of revised norms to projects commissioned in FY 2013¬14 prospectively from the date of notification of the impugned Amended Regulations. In other words, the High Court has not analysed the grounds of challenge regarding the validity of the impugned Amended Regulations and including the competency to frame such a regulation, appropriately. Strikingly, the High Court then straightaway proceeds to examine the second contention raised by the appellants in reference to the third proviso in the principal Regulations providing for adjustments as per revised regulations. The Court merely noted that the appellants failed to point out any prejudice caused to them because of exclusion from the benefit flowing from the principal Regulations. The appellants, on the other hand, have invited our attention to the specific grounds taken by the appellants in the writ petition and also noted in the order of the Commission dated 4 th August, 2015 and additionally articulated in the ground No. B of the special leave petition, giving comparative chart indicating substantial disparity regarding the norms applicable as per principal Regulations and the impugned Amended Regulations. In other words, the argument of prejudice was raised by the appellants to the detail but the High Court has failed to deal with the same, to say the least satisfactorily. Similarly, the detail arguments regarding the validity of the impugned Amended Regulations and the competency to frame such a regulation has not been analysed by the High Court.9. Suffice it to observe that the discussion in two paragraphs (para 14 and 15), to say the least, is one of disposing of the writ petition in a most casual and cavalier manner. That cannot be countenanced. Having said this, we are of the considered opinion that it would be appropriate to relegate the parties before the High Court for fresh consideration of the writ petition on its own merits in accordance with law. We refrain from expressing any opinion either way on the merits of the controversy or the grounds of challenge regarding the impugned Amended Regulations. In other words, the High Court must consider all relevant aspects of the matter agitated by the appellants and deal with the same appropriately in accordance with law.10. For completion of the record, we must note the decision of the Constitution Bench of this Court in PTC India Ltd. Vs. Central Electricity Regulatory Commission, Through Secretary (2010) 4 SCC 603  , which has held that the challenge to the validity of the regulations can be decided only in judicial review proceedings before the courts and not by way of appeal or review. The appellants having invoked such a remedy before the High Court, all contentions available to the appellants in that regard ought to have been adjudicated in proper perspective.