# M/S Shokumbhari Pulp & Paper Mills Ltd v. U.P.P.C.L. & Ors

- **Citation:** (2014) 1 ILRA 486
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-04-01
- **Case number:** Civil Misc. Writ Petition No. 13514 of 2014
- **Bench:** Vineet Saran, Attu Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-shokumbhari-pulp-paper-mills-ltd-v-u-p-p-c-l-ors-42895
- **Pages:** 4

## Headnote

U.P. Electricity Reform Act-1999-Section 24(7)-
readwith
U.P.
Electricity
Regulatory
Commission(Conduct & Business) Regulation
2004, Regulation 138, 139-readiwith electricity
supply code 2005-clause-38-Application of
tariff notification- with retrospective effectagainst
statutory
provisions-quashed-with
consequential direction.

Held:Para-8&13

## Text

486 INDIAN LAW REPORTS ALLAHABAD SERIES

8. There is no challenge raised to the
certificate issued to the respondent no. 4 by
the petitioner on any substantial material to
support the allegations. This Court is no
medical expert to receive any material and
medically assess the disability certified by the
medical authority. The petitioner could have
approached the authority competent dealing
with the medical board as per any rules therein
but it appears that instead of that the District
Magistrate was handed over a complaint.

9. In such circumstances, the entire
complaint is misdirected and accordingly
we are not inclined to interfere with the
impugned order on any of the grounds
raised. Rejected.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2014

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE ATTU RAHMAN MASOODI, J.

Civil Misc. Writ Petition No. 13514 of 2014
connected with W.P. No. 17090 of 2014 and
W.P. No. 15122 of 2014

M/S Shokumbhari Pulp & Paper Mills Ltd.
 ....Petitioner
Versus
U.P.P.C.L. & Ors. ............... Respondents

Counsel for the Petitioner:
Sri Mayank Agarwal

Counsel for the Respondents:
Sri Nipendra Mishra

U.P. Electricity Reform Act-1999-Section 24(7)-
readwith
U.P.
Electricity
Regulatory
Commission(Conduct & Business) Regulation
2004, Regulation 138, 139-readiwith electricity
supply code 2005-clause-38-Application of
tariff notification- with retrospective effectagainst
statutory
provisions-quashed-with
consequential direction.

Held:Para-8&13
8. A plane reading of the relevant
provisions of law reproduced hereinabove
lead to a clear conclusion that the revision
of tariff as may be promulgated by the
Commission when published and notified by
the U.P. Power Power Corporation shall not
be made applicable retrospectively so long
as the statute permits to do so or the
intention of statute is capable of such an
interpretation. In the present case there is a
clear bar under the statute to enforce the
revision of tariff notification retrospectively.

13. In view of the position of law stated
above, there is merit in the contention of the
learned counsel for the petitioners and
challenge to the retrospective application of
the impugned notifications is liable to
succeed.

Case Law Discussed:
2009 11(SCC) 244

(Delivered by Hon'ble Vineet Saran, J.)

1. This set of writ petitions involve a
common question of law, as such, the writ
petitions were heard together and are
being decided by a common judgment.

2. We have heard Sri Mayank
Agrawal, learned counsel for the petitioners
as well as Sri Nripendra Mishra, Sri Chandan
Agrawal and Sri Shivam Yadav learned
counsel appearing for the respondents
Corporation and perused the record.

3. The dispute in all the writ petitions is
confined to the applicability of the revised tariff
as was finally determined by the U.P.
Electricity
Regulatory
Commission
on
19.10.2012 (annexure-2) and published by U.P.
Power Corporation on 23.10.2012 (annexure3) and notified by the Corporation on
1 All] M/S Shokumbhari Pulp & Paper Mills Ltd. Vs. U.P.P.C.L. & Ors.

487
25.10.2012 (annexure-4). In the publication
order made by the respondent Corporation on
23.10.2012, at the foot of publication
notification, it is mentioned that the revised
rates would be applicable w.e.f. 1.10.2012.
Relevant noting in the said publication is
quoted below:

"The above Rate and Charges as
approved by U.P. Electricity Regulatory
Commission shall become applicable with
effect from 1st October, 2012 in all four
DisComs and KesCo. The approved tariff
order and Rate schedule are also available
at the website of U.P. Power Corporation
Ltd.
&
U.P.
Electricity
Regulatory
Commission at www. uppcl. org & www.
uperc.org respectively."

4. The dispute arises as to the
retrospective application of the revised
rates of tariff w.e.f. 01.10.2012. The
learned counsel for the petitioners while
assailing the retrospective application of
the tariff notification published and
notified on the respective dates i.e.
23.10.2012 and 25.10.2012 respectively
has submitted that the revision of tariff as
per law cannot be made applicable
retrospectively. In this regard, the learned
counsel for the petitioners drew our
attention to the various provisions of law
which we may refer to for the purposes of
adjudicating the controversy at hand.

5. In the first place, the learned
counsel for the petitioners drew our
attention to Section 24 (7) of the U.P.
Electricity Reforms Act, 1999 and the
same is reproduced below.

"24(7) Each holder of supply license
shall publish in at least two daily
newspapers, widely circulating in the area of
supply, and made available to the public on
request, the tariff for the electricity within its
area of supply and such tariff shall come into
force after seven days from the last date of
such publication, and any tariff implemented
under this Section,-

(a) shall not show any preference of
favour to any consumer of electricity, but
may differentiate on the ground of the
consumer's load factor, or purpose of use
of power factor, the consumer's total
consumption of electricity during any
specified period, or the time during which
the supply is required;

(b) shall be just and reasonable and
be such as to promote economy and
efficiency in the supply and consumption
of electricity; and

(c) shall accord with all other
relevant provisions of this Act and the
conditions of license."

6. In the year 2003, the Electricity
Act, 2003 came into force and as per the
provisions of the Act, the supply of
electricity to the consumers at large for
the purposes of tariff is subjected to
Section 62 of the Electricity Act, 2003,
according to which, the power is vested in
the State Regulatory Commission to
determine the tariff for the purposes of
retail sale. The tariff framed by the
Commission is sent to the Power
Corporation for publication in accordance
with
U.P.
Electricity
Regulatory
Commission (Conduct and Business)
Regulations, 2004. Learned counsel for
the petitioners has referred to Regulation
138 and 139 which are reproduced below:

"138. (1) Subsequent to the licensee
furnishing
the
complete
information
required by the Commission, and upon
488 INDIAN LAW REPORTS ALLAHABAD SERIES

hearing the licensee and other interested
parties, the commission shall make an
order and notify the applicant of its
decision on the revenue calculations and
tariff proposals.

(2) while making an order under(1)
above or at any time thereafter the
commission may notify the tariff which
the licensee or generating company shall
charge from different categories of
consumer in the ensuing financial year.
Any Order issued by the Commission
shall be published by the Licensee in the
prescribed manner, unless an appeal or
review is preferred by the Licensee
against the Order.

139. (1) The licensee
or
the
generating company shall publish the
tariff
or
tariffs
approved
by
the
Commission in at least two daily
newspapers (one English and one Hindi)
having circulation in the area of supply as
provided in subsection (7) of Section 24
of the U.P. Electricity Reforms Act. The
publication shall, besides other things as
the Commission may require, include a
general
description
of
the
tariff
amendment and its effect on the clauses
of the consumer.

(2) The tariffs so published under (1)
above shall become the notified tariffs
applicable in the area of supply and shall
come into force after seven days from the
last date of such publication of the tariffs,
and shall be in force until any amendment
to
the
tariff
is
approved
by
the
commission
and
published.
The
Commission shall, within seven days of
making the order, send a copy of the order
to the state Government, the Authority,
the concerned licensees and to the person
concerned."

7. In the backdrop of statutory
provisions extracted above, U.P. Power
Corporation
has
also
promulgated
Electricity Supply Code 2005 for the
purposes of carrying out the objects of
Electricity Act, 2003 and other laws
applicable in this behalf. Clause 3.8 of the
Electricity Supply Code 2005 for ready
reference is reproduced below:

"3.8 Charges for Supply

(a) Tariff and other charges for the
supply of electricity shall be announced
by the Licensee with the approval of the
Commission in accordance with Section
24 of the U.P. Electricity Reforms Act,
1999 to the extent consistent with
provisions of the Electricity Act, 2003.
Such tariffs or charges shall take effect
only after seven days from the date of
publication
in
at
least
two
daily
Newspapers having wide circulation in
the area of supply."

8. A plane reading of the relevant
provisions of law reproduced hereinabove
lead to a clear conclusion that the revision of
tariff as may be promulgated by the
Commission when published and notified by
the U.P. Power Power Corporation shall not
be made applicable retrospectively so long as
the statute permits to do so or the intention of
statute is capable of such an interpretation. In
the present case there is a clear bar under the
statute to enforce the revision of tariff
notification retrospectively.

9. In support of the contention made
by the learned counsel for the petitioners,
he has relied upon a judgement of the
Hon'ble Supreme Court reported in 2009
11 (SCC) 244, Binani Zinc Limited Vs.
Kerala State Electricity Board and Others,
wherein the Hon'ble Supreme Court in
1 All] Wasim Raja Khan Vs. Board of Revenue U.P. & Ors.

489
para 36 of the judgement has observed as
under:

"The commission has been empowered
to frame tariff. It has, however, not been
empowered to frame tariff with retrospective
effect so as to cover a period before its
constitution. The matter might have been
different if such a power had been conferred
on the Commission. It is now a well settled
principle of law that the rule of law inter alia
postulates that all laws would be prospective
subject of course to enactment of an express
provisions or intendment to the contrary."

10. The observations made by the
Hon'ble Apex Court clearly support the
stand advanced by the counsel for the
petitioners and contrary view in the facts
and circumstances of the case cannot be
possibly taken.

11. The learned counsel for the
respondents tried to defend the validity of
the tariff notification primarily on the
ground that the petitioners have an
alternative remedy before the Tribunal.
However, no satisfactory explanation
could be advanced as to the authority
under which the impugned notification
was made applicable retrospectively.

12. The argument of an alternate
remedy at this stage of proceedings carries no
weight particularly when the pleadings
between the parties have already been
exchanged and the question involved in the
writ petition is a pure question of law. Even
otherwise, the respondent corporation clearly
lacks legal authority under which it could
enforce
the
impugned
notifications
retrospectively. Therefore, the plea of
alternative remedy cannot be construed to be a
bar for entertaining the present writ petitions
under Article 226 of the Constitution of India

13. In view of the position of law stated
above, there is merit in the contention of the
learned counsel for the petitioners and
challenge to the retrospective application of the
impugned notifications is liable to succeed.

14. In the result, writ petitions are
allowed to the extent that the revised tariff
promulgated
by
the
U.P.
Electricity
Regulatory Commission on 19.10.2012,
published on 23.10.2012 and notified on
25.10.2012 shall be affective from 1.11.2012
and the applicability of the tariff as notified
from 1.10.2012 retrospectively is thus,
quashed. The amount, if any, realized from
the petitioners treating the tariff effective from
01.10.2012 shall be adjusted by the
respondent corporation in the future bills of
the respective petitioners in the bunch of
writ petitions mentioned hereinabove.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2014

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 15248 of 2014

Wasim Raja Khan..... Petitioner
Versus
Board of Revenue U.P. & Ors. Respondents

Counsel for the Petitioner:
Sri Yogesh Kumar Singh, Sri Subhash Singh
Yadav

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-order passed
by Commissioner as well as Board of
Revenue-challenging
on
ground-once
revision time barred-in absence of delay
condonation application-only course was to
dismiss revision as time barred-contrary to
that notices issued-revision against order