Nand Kishore Garg v. Gnct of Delhi and Anr

MANMOHAN, J. FEBRUARY 18, 2011 Dk/pk

* HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on : 11th February, 2011 % Judgment Pronounced on: 18th February, 2011 + WP(C) No.4821/2010 SHRI NAND KISHORE GARG & ANR. ..... Petitioners Through: Mr.Laliet Kumar with Mr.Deepak Vohra, Advocates Mr.Jayant Bhushan, Sr. Advocate with Ms.Pyoli, Advocate for the Intervenor. Versus GOVERNMENT OF NCT OF DELHI & ORS. ....Respondents Through: Mr.Goolam E. Vahanvati, Attorney General along with Mr.Atul Nanda, Advocate for Union of India. Mr.Dushyant Dave, Sr. Advocate with Mr.N.Waziri and Ms.Neha Kapoor, Advocates for the Respondent No.1. Mr.Parag P. Tripathi, ASG with Mr.H.S. Chandhoke and Mr.Kunal Bahri, Ms.Purnima Sapra, Advocates for the Respondent No.2. Mr.V.P. Singh with Mr.Aashish Gupta, Advocates for the Respondent No.3. Mr.Sudhir Nandrajog, Sr. Advocate with Mr.Amit Kumar and Mr.Anupam Varma, Advocates for the Respondent No.4. Dr.A.M.Singhvi, Sr.Advocate with Mr.V.P. Singh, Mr.Anuj Berry and Mr.Jaiveer Shergil, Advocates for the Respondent No.5. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ In this public interest litigation the petitioner describing himself as pro bono publico has prayed for issue of a writ of mandamus commanding the respondent No.2, Delhi Electricity Regulatory Commission (for short "the Commission"), to issue the tariff approved by it on 28/29.4.2010 and pass such other order / orders as may be deemed fit in the facts and circumstances of the case. 2. At the very outset, we may state with profit that various assertions and asseverations have been made with regard to the issues relating to finalization of the tariff by the Commission under the provisions of The Electricity Act, 2003 (for brevity "the 2003 Act"), the illegality committed by the Government of National Capital Territory of Delhi in asking the Commission not to issue the tariff and further how the consumers have been affected by non-issuance of the tariff order. But after impleadment of certain respondents, namely, BSES Yamuna Power Ltd., BSES Rajdhani Power Ltd. and North Delhi Power Ltd. the question, apart from other issues, that fundamentally cropped up whether the State Government could have passed the order in the manner it has done in exercise of power under Section 108 of the 2003 Act. 3. In this regard, we think it apposite to reproduce the relevant submissions advanced on 9.9.2010: "The submission of Mr. Laliet Kumar, learned counsel for petitioner, is that the State Government could not have intervened after the tariff was determined by the Commission as the same is not permissible under any of the provisions of the statute. The learned counsel for the petitioner further submitted that the tariff fixation does not come within the ambit and sweep of a policy decision and further after a decision has been taken by the Commission, the State Government has no authority to issue any direction or intervene in the matter. Quite apart from that, it has been submitted by Mr. Laliet Kumar that the letter dated 4th May, 2010 issued by the State Government does not meet the requisite criteria of a policy decision, though the same has been couched in a different language. To bolster the said aspect, the learned counsel for the petitioner has commended us to the provisions contained in Sections 61, 62, 64 and 92 of the Electricity Act, 2003 (for brevity "the Act"). Mr.Harish N. Salve, learned senior counsel appearing for NDPL, and Mr.Neeraj Kishan Kaul, learned senior counsel appearing for BSES Rajdhani Power Ltd., contended that the State Government has the power to issue directions as is evincible from Section 108 of the Act. Section 108 reads as under:- "108. Directions by State Government:---(1) In the discharge of its functions, the State Commission shall be guided by such dir