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TMI Blog2015 (4) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... 62 of the Act is to be published in such form and manner as may be specified by the appropriate Commission. In response to such publication, members of the public (including consumers) are entitled to submit suggestions and objections before the Commission. The Commission upon receipt of such suggestions/objections (if any) from the public shall within 120 days from receipt of tariff application consider such suggestions/objections and pass tariff order accepting the application with such conditions or modifications as may be specified in the said order or reject such application after assigning reasons in support thereof - Order under section 64 of the Act is subject to an appeal before the Appellate Tribunal under section 111 of the Act at the behest of an aggrieved party where the parties shall be given an opportunity of hearing by the Tribunal while disposing of such appeal. Natural justice is not a strait jacketed formula. Oral hearing may be a constituent of natural justice but is not an inalienable facet in all cases. Even otherwise whether it is oral or written objection as long as such opportunity is provided . There is no question of violation of principles of natural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of 2014 being application under section 5 of the Limitation Act in connection with MAT No. 1984 of 2014 and being satisfied with regard thereto delay of 327 days in preferring the appeal (MAT No. 1984 of 2014) is condoned. Appeal being MAT No. 1984 of 2014 is directed against the order dated 20.12.2013 passed by the learned Single Judge in WP No. 35245 (W) of 2013 so far as it relates to the direction of the learned Single Judge that the respondent/writ petitioners be given an opportunity of oral hearing at the time of determination of retail/distribution tariff of the licensee Damodar Valley Corporation by the appellant West Bengal Electricity Regulatory Commission (hereinafter referred to as State Commission ). Appeal being FMA No. 4319 of 2014 is directed against the order dated 31.07.2014 disposing of review petition RVW No. 33 of 2014 preferred by the State Commission seeking review of the aforesaid order in that regard. Both the appeals have been heard analogously and are being disposed of by a common judgement and order. Shorn of details, factual matrix giving rise to the aforesaid appeals is as follows : ‐ Damodar Valley Corporation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount for the period from May, 2010 to August, 2010 and the revised bills on and from September, 2013 as per rates unilaterally fixed by DVC, respondent/writ petitioners herein, preferred the instant writ petition. After hearing the parties, a learned Single Judge of this Court directed stay of the impugned demand notices subject to the writ petitioners furnishing bank guarantee to the tune ₹ 3.75 crores and further directed as follows : ‐ ......The D.V.C. must file the application in terms of the order dated 30th September, 2012 as also in terms of the tariff regulation dated 25th April, 2011. In the event, the said application is filed, the West Bengal Electricity Regulatory Commission shall dispose of the matter preferably within a period of 120 days of filing of the said application after giving a reasonable opportunity of hearing to the respective parties. The furnishing of bank guarantee shall abide by the result of the application to be filed by the D.V.C. In the event, the D.V.C. does not file the application in terms of the order dated 30th September, 2013 within 31st December, 2013, the petitioners would be at liberty to apply before this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h law. There was no scope of giving oral hearing to the consumers or members of the public. Oral hearing was envisaged to be given only to the licensee in the event his application was rejected. He submitted that the respondent/writ petitioners had not sought for oral hearing in the writ petition yet the learned Single Judge had suo motu granted such privilege to them. He further submitted that determination of tariff was a legislative exercise which obviated any requirement of oral hearing. He relied on Union of India Anr. Vs. Cynamide India Ltd. Anr., (1987) 2 SCC 720 in support of such contention. He accordingly, submitted that the direction for giving oral hearing to the respondent/writ petitioners be set aside. Mr. Kar, senior counsel for DVC supported the submissions made on behalf of the appellant Commission. He further supplemented by submitting that the proceeding before the Commission was not an adversorial one and it was incumbent on the Commission itself to protect the interest of the consumers on its own in terms of section 61(d) of the Act of 2003. He further submitted that raising of differential tariff was, in fact is in the interest of the consumers le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermination of tariff has been caused by the indifferent approach of DVC and not the respondent/writ petitioners, therefore they should not be denied an opportunity of oral hearing on that score. The nub of the dispute is, therefore, whether the respondent/writ petitioners have a right of oral hearing before the appellant State Commission in the matter of determination of retail tariff under section 64 of the Act or alternatively, in the facts of this case they are entitled to such relief on an equitable premise being saddled with the liability to furnish bank guarantee in terms of the order appealed against. Section 64 of the Act of 2003 reads as follows : 64. Procedure for tariff order. ‐ (1) An application for determination of tariff under section 62 shall be made by a generating company or licensee in such manner and accompanied by such fee, as may be determined by regulations. (2) Every applicant shall publish the application, in such abridged form and manner, as may be specified by the Appropriate Commission. (3) The Appropriate Commission shall, within one hundred and twenty days from receipt of an application under su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 64 of the Act is subject to an appeal before the Appellate Tribunal under section 111 of the Act at the behest of an aggrieved party where the parties shall be given an opportunity of hearing by the Tribunal while disposing of such appeal. The appellant State Commission in exercise of its powers under the Act of 2003 framed regulations relating to determination of tariff, namely, West Bengal Regulatory Commission (Terms and Conditions of Tariff) Regulations, 2011. Regulation 2.4 reads as follows : 2.4. Notwithstanding anything to the contrary contained elsewhere in these regulations or any other regulations of the Commission, the Commission will undertake hearing or invite suggestions and objections in a manner and at a stage which is only specifically provided in these regulations with following provisions: ‐ i) Wherever there is invitation of suggestion and objection under these regulations it shall mean that such suggestion and objection shall always be submitted in written form only. ii) Whenever suggestions and objections are required to be invited under these regulations it shall be through advertisement in website and/or newspaper in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t only the licensee is to be given oral hearing during tariff determination under section 64 of the Act of 2003 in the event his application for tariff fixation is rejected. Any objector to the application is entitled to make written representation only. Natural justice is not a strait jacketed formula. Oral hearing may be a constituent of natural justice but is not an inalienable facet in all cases. Even otherwise whether it is oral or written objection as long as such opportunity is provided . There is no question of violation of principles of natural justice . However the procedure contemplates oral hearing only if decision is to reject application for tariff fixation submitted by the license. Reference in this regard may be made to the observations of Hamilton L.J. in Rex v. Local Government Board, Ex parte Arlidge (1914) 1 K.B. 160 at 191 : ‐ the question whether the deciding officer 'hears' the appellant audibly addressing him or 'hears' him only through the medium of his written statements, is in a matter of this kind one of pure procedure. Statutory scheme under which the decision is taken, nature and subject matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of law or could be inferred from the scheme of the Act itself. The ratio of the said decision (though cited by the respondent/writ petitioners), in fact, helps the cause of the appellant. We are of the opinion that the scheme of the legislation in the instant case gives rise to an irresistible inference that the objection of consumers and other members of the public before the State Commission under section 64 of the Act are to be made in written form only and no right of oral hearing is reserved in their favour. Furthermore, although the determination of tariff under section 64 has been held to be a quasi ‐ judicial act, it cannot be said to be an adversorial exercise so far as respondent/writ petitioners are concerned, since they have not been charged with any accusation which they are required to defend. On the other hand, the decision making process partakes the nature of a statutory inquiry where the authority is called upon to arrive at an informed decision as to tariff fixation after considering the objections or suggestions of all stakeholders including the consumers who may be affected by such decision so taken. The nature of such enquiry is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings as invalid would be to condemn something as being unfair because of a flaw in a part when if the whole was considered the flaw would be sufficiently insignificant to enable the whole procedure to be regarded as unblemished. Expressing the matter slightly differently, if the whole procedure is properly regarded as being fair, then to strike that procedure down because of a flaw in part will be to apply an unduly technical approach. Similar view appears to have been expressed by the Apex Court in Canara Bank Ors. Vs. Debasis Das Ors, (2003) 4 SCC 557 wherein the Court held that an opportunity of oral hearing granted by the appellate authority amounted to a post ‐ decisional hearing which obliterated the procedural deficiency of a pre ‐ decisional hearing provided no prejudice in the facts situation of the case is demonstrated. The Apex Court held as follows : ‐ 10. It is to be further noted that in the appeal before the Appellate Authority findings of the Inquiry Officer were challenged and, therefore, the question of any prejudice does not arise. Since employee had the opportunity to meet the stand of the Bank, it was to his advantage, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uggestions/objections and insist on a personal hearing in respect of each objector/consumer in the course of a time bound process for fixation of tariff by the State Commission under section 64 of the Act of 2003, we are not impressed by the submission of learned counsel for the respondent/writ petitioners that a right of oral hearing ought to be read into the statute. It has been further argued that opportunity of hearing was, in fact, provided by CERC to stakeholders while determining generation and inter ‐ state transmission tariffs in the instant case. One must bear in mind that there is a gulf of difference between a claim of oral hearing as a matter of right and the discretion of the tribunal to give such opportunity on its own volition. The number of stakeholders/objectors are far numerous before the State Commission while considering the matter of determination of retail tariff than those before CERC. Procedure adopted by CERC cannot override the clear words of the statute and the legislative intent arising therefrom. In view of the statutory scheme, subject matter of enquiry, nature of the decision taken by the State Commission and other relevant factors we h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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