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2015 (7) TMI 1130 - SUPREME COURT

2015 (7) TMI 1130 - SUPREME COURT - 2015 AIR 2978, 2015 (7) SCR 215, 2015 (9) SCC 209, 2015 (7) SCALE 288 - Power of Petroleum and Natural Gas Regulatory Board to fix or regulate the maximum retail price at which gas is to be sold by entities such as Indraprastha Gas Ltd, to the consumers - power of Board to fix any component of network tariff or compression charge for an entity having its own distribution network - Petroleum and Natural Gas Regulatory Board (Determination of Network Tariff for .....

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e transportation tariff of a consumer of natural gas? - Held that: - the Board has not been conferred such a power as per Section 11 of the Act. That is the legislative intent. Section 61 enables the Board to frame Regulations to carry out the purposes of the Act and certain specific aspects have been mentioned therein. Section 61 has to be read in the context of the statutory scheme. The regulatory provisions, needless to say, are to be read and applied keeping in view the nature and textu .....

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rk tariff for city or local gas distribution network and compression charge for CNG - appeal dismissed - decided against appellant. - CIVIL APPEAL NO.4910 OF 2015 [Arising out of SLP (Civil) No. 22273 of 2012] - Dated:- 1-7-2015 - DIPAK MISRA & UDAY UMESH LALIT JJ. J U D G M E N T Dipak Misra, J. The present appeal, by special leave, calls in question the legal defensibility and the tenability of the judgment and order dated 01.06.2012 passed by the High Court of Delhi in W.P.(C) No. 2034 of .....

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oleum and Natural Gas Regulatory Board (Determination of Network Tariff for City or Local Natural Gas Distribution Networks and Compression Charge for CNG) Regulations, 2008 (hereinafter referred to as the Regulations ) as far as it is construed to empower the Board to fix the tariff is unsustainable and accordingly as a sequitur the order dated 9.4.2012 to the extent of fixing the maximum retail price or requiring the respondents to disclose the entire tariff and the compression charges to its .....

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titioner at ₹ 38.58 per MMBtu and ₹ 2.75 per kg. respectively w.e.f. 01.04.2008 and directing the petitioner therein to recover the said network tariff and compression charges for CNG separately through an invoice, without any premium or discount on a non-discriminatory basis and to appropriately reduce the selling price of CNG from the date of issuance of the order. Be it noted, the Board left the modalities and time frame for refund of differential network tariff and the compressio .....

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was resisted by the learned counsel for the Board contending, inter alia, that Regulations 3 and 4 of the Regulations apply to the entities like the writ petitioner; that the Board has the power to ask the writ petitioner, the respondent herein, to submit the network tariff and compression charges for CNG as per the Quality Regulations for approval of the Board; that the entity having accepted the said term as a condition for obtaining exclusivity is bound by the contractual obligation with the .....

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ely defensible; that as per Section 11(e), the Board is empowered to regulate, inter alia, the transportation rates; that Section 61(2), especially, clauses (n), (t), (za) empower the Board to make regulations qua transportation tariff and any other matter which is required to be or may be specified by the Regulations or in respect of which provision is to be made by the Regulations; that keeping in view the objective of the Act, the Regulations permit the Board to fix the network tariff and the .....

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to hold that:- We thus conclude that PNGRB Act does not confer any power on the Board to fix/regulate price of gas as has been done vide the impugned order dated 9th April, 2012. Having held so, we do not deem it necessary to deal with the other Regulations impugned in the writ petition and suffice it is to state that any provision therein having the effect of empowering the Board to fix the price or the network tariff or compression charges for CNG, as long as not transportation rate, is beyond .....

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distribution network. The provisions of the Regulations (supra) in so far as construed by the Board to be so empowering it are held to be bad/illegal. Accordingly, the order dated 9th April, 2012 to the extent so fixing the maximum retail price or requiring the petitioner to disclose the network tariff and compression charges to its consumers is struck down/quashed. 5. Criticizing the judgment and order passed by the High Court, Mr. Arvind Datar, learned senior counsel for the appellant, has ra .....

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e parent Act without referring to any specific section or provision. That apart, on a reading of the provisions of the Act it is also noticeable that there is no postulate that the Power to frame the transportation rate/transportation tariff can only be exercised only when the city network becomes a common carrier or contract carrier. (b) While the city networks get market exclusivity for 3/5 years, they get infrastructure exclusivity for 25 years with further extension of 10 years at a time and .....

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f, would apply for carrying the gas of other suppliers under section 21(2). (c) The High Court has erroneously opined that the transportation rate provided for is the rate to be charged by one entity under the Act from another for transporting/carrying/moving gas of the other, for such a conclusion is completely contrary to the definition contained in section 2 (zn). The transportation rate has to be determined even for city networks under sections 22(1), 61(2)(e) and 61(2)(t) and that is the ra .....

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fix the selling price or monitor the selling price as natural gas has not been notified, yet the Board has the power, and indeed the duty, to fix the network tariff and compression charges (which are nothing but the transportation rate/transportation tariff) under the Act. (d) The High Court has committed gross illegalityin its analysis while stating that the Board is not empowered to fix any component of Network Tariff or Compression Charge for any entity such as the respondent herein having i .....

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that source of power comes from the provisions engrafted under Sections 2(zn), 22(1), 61(2)(e) and 61(2)(t) of the Act as they confer power on the Board to frame regulations for all three categories. (e) The omission of city network in Section 11(e) (ii) is only accidental, and if the provisions of the Act are read as a whole, the power of the Board is clear as crystal for determining the transportation rate/transportation tariff for all categories. If the contention of the respondents is accep .....

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ns will become applicable only after the period of exclusivity. The Central Government had supplied subsidized gas to the authorised entities to ensure that consumers do not have to pay a high cost for both piped natural gas (used for domestic purposes) and compressed natural gas (used for transportation) and has made it mandatory for the respondents to disclose the break up. Quite apart from that, Section 21(1) that stipulates right of first use after the exclusivity period and Section 21(2) wh .....

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ivity period not only for the gas of other entities but also for the gas that is supplied by the authorised entity itself. Section 20(4) mandates the Board to fully protect consumer interest while granting exclusivity to the city network and the consumer interest is protected by the Board determining the transportation tariff being applicable to and being indicated for all the gas transported in the city network, whether it belongs to other entities or to the entity owning and operating the city .....

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ty suppliers of gas, who seek to use the excess capacity in the pipeline of the network, the Board may fix the transportation rate, which the 1st respondent may charge from such a third party supplier. The consumers of natural gas, whether of the first respondent, or of the third party supplier of gas, does not enter into the scene at all and has no role to play whatsoever. The transportation in question whether by the network while supplying to its consumers or by a common/contract carrier in r .....

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n Section 2(j) and Contract Carrier in Section 2(m) postulate certain conditions and the definition of city or local natural gas distribution network in Section 2(i) does not contain the said crucial twin conditions. That apart, Section11(a) and Section 11(e) permit the issuance of regulations which determine access and the transportation rate for Common Carrier or Contract Carrier, and the said provision limits the power of the Board to issue regulations only in respect of access to the network .....

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within the meaning of Sections 20-22; and, therefore, as far as a network is concerned, there is no right to determine transportation rate. Such power is specifically limited in respect of common/contract carrier under Section 11(e)(ii). The very concept of transportation rate which is defined in Section 2(zn) makes it clear that it is the rate for moving each unit of petroleum, petroleum products or natural gas as may be fixed by the Regulations and Section 21(2) which uses the expression trans .....

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at under Sections 20 - 22, during the period of exclusivity, the Board is disabled from declaring such pipeline, whether existing or a new one, as a common/contract carrier; and once a pipeline is declared to be a common carrier/contract carrier, it is required to make available its excess capacity as a part of the open access regime, to any third party supplier of gas. Such a third party may either be an importer or purchaser or a producer of gas seeking to transport its gas using the pipeline .....

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the legislature and, therefore, it cannot do so by a regulation. The reliance by the Board on Section 61(2) (q) & (t) is misplaced, for Section 61(1) of the Act permits the Board to make regulations consistent with the Act and the Act which confers power on the Board to frame the Regulations does not empower it to do so. That apart, Section 61 deals with the general regulation making power of the Board in terms of the Sections specified in the Act; and Section 61(2)(q) and (t) relate back to .....

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ed, collated and analyzed and unless the rate is fixed even during the five year period, there will be no rate available for the common carrier at the end of the exclusivity period and it will be absurd to suggest that the entire exercise has to begin only after the city network becomes a common carrier. The transportation rate has to be determined for a network of pipelines under Section 2(zn) and is not a separate determination for city networks, common carrier or contact carrier as the object .....

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a perusal of Section 61(2)(e) which specifically refers to Section 11(e). (II) The Board as a regulator has the obligation to ensure that the consumers are not exploited and under Section 20(4) the Board grants monopoly for 25 years with further extension of 10 years at a time and barring unforeseen circumstances, such a network will have exclusive infrastructure monopoly for several decades. Therefore, in the factual matrix, the Board has a duty to ensure that consumer interest is protected du .....

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onsumer so that it does not result in excessive profiteering and under these circumstances, it is the duty of the respondent to reveal the transportation prices to the Board as well as to the consumers. (III) Section 20(4) gives the right to the Board to grant exclusivity to the city or local natural gas distribution network for such period as the Board may decide and once it has the power to give exclusivity to a city or local natural gas distribution network owning entity so that only it can l .....

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ensuring adequate availability of natural gas throughout the country and, therefore, the Board can determine the transportation rate/tariff. If the stand of the respondent is accepted, the consumers would never know the transportation rate, since it is possible that in many cases there may not be any other gas supplier who is using the network of pipelines after the exclusivity period. 8. Having enumerated the submissions in reply by the first respondent, we must record the submissions of the se .....

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he entity. (ii) As regards the applicability of ransportation tariff determined through the Regulations, it is clearfrom the provisions of the Act that suchtransportation tariff is applicable only in respect of an outside entity that is willing to use the CGD network and that such tariff is payable by that entity to CGD network operator. The transportation tariff notified through the Board Regulations is not applicable for CGD entity when it transports its own gas for supply to individual custom .....

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id rate is to prevent the CGD operator from putting up any kind of entry barrier in the form of a higher transportation tariff for the third party. (iv) Section 22 of the Act read with Section 20, 21 and 2(zn) of the Act, the Board is empowered to regulate the transportation rate or transportation tariff only for a city or local natural distribution network subject to the provisions as provided in the Act. When such city or local natural gas distribution network is declared as a common carrier o .....

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empowered to fix the price at which entities will market or sell the notified petroleum products or natural gas. The MRP is to be fixed by the entity. The Board shall only monitor the prices and take corrective measures to prevent restrictive trade practices by the entities. As regards regulation of the activities of transmission and distribution of petroleum products and natural gas, the Board will oversee access to pipelines and city or local natural gas distribution networks on non-discrimina .....

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gas distribution network for transportation of their gas. This, in turn, will foster fair trade and competition in marketing amongst entities (vi) The Board is entitled to fix the transportation rate for gas transmission and distribution in all cases where gas is transported on common carrier or contract carrier principle. The transportation rate so fixed by regulator shall be paid by the third party entities to the entity, owning and operating the city or local natural gas distribution network .....

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ir trade and competition amongst entities, which in turn, will protect the interest of consumers. 9. Mr. K.K. Venugopal, learned senior counsel appearing for the intervenor, Central U.P. Gas Ltd., has contended that the Board does not have the power to fix MRP and the distribution entity has a fundamental right to carry on the trade, subject to restriction under Article 19(1)(g) of the Constitution and in the case at hand, the Act, does not confer any power on the Board to fix the MRP, but on th .....

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cise, a brutum fulmen, for the simple reason that however low may be the component of MRP determined by the Board, the authorised entity can virtually ignore the same. It is argued by him that the Board is a creature of the Act and it can only exercise its functions in accordance with and within the four corners of the said Act and it cannot prescribe what it calls network tariff and compression charge under the Regulations, because the statute refers to fixation of transportation tariff/transpo .....

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enior counsel that the said provision which provides for Board s function and empowers the Board to frame regulations, employs the words transportation rates for common carrier or contract carrier and they remotely do not purport to fix rates for network tariff or compression charges for city gas distribution network. In addition, it is propounded by him that reliance on Sections 21(2) and 22(1) and all other provisions are absolutely misconceived and the assumption that the Board as a regulator .....

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ure in various provisions of the Act. It is his further submission that Section 61(2)(t) is controlled by sub-section 22(1) which in turn is guided by Section 22(2) and all the provisions are associated with common or contract carriers only and by no stretch of imagination, it confers any power on the Board to fix transportation rate, as it is only referable to the rate charged by one commercial entity from any commercial entity for using its gas transportation networks. In essence, his submissi .....

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astha Gas Limited (IGL). Clause 1 deals with the Regulatory Framework. Clause 1.1 reads as follows:- 1.1 In terms of Sections 22 of the PNGRB Act, 2006, the Board is entrusted with the responsibility to lay down the transportation tariff for city or local natural gas distribution network. As per the relevant provisions of the PNGRB (Authorizing Entities to Lay, Build, Operate or Expand City or Local Natural Gas Distribution Networks) Regulations, 2008 read with the said statutory provisions, the .....

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order, we may profitably reproduce:- 3.19 As per the provisions of the PNGRB (Determination of Network Tariff for City or Local Natural Gas Distribution Networks and Compression Charge for CNG) Regulations, 2008 the actual performance with respect to the capital and operating costs during the previous review period against the identified parameters shall be monitored and the variations shall be adjusted in the calculations on a prospective basis considering the remaining period of economic life .....

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l Gas Distribution Networks and Compression Charge for CNG) Regulations, 2008 were notified on 19th March 2008, for the purpose of ease in calculations, the applicable network tariff and compression charge for CNG determined by the Board shall be applicable from 1st April, 2008. Accordingly, the Network Tariff and the Compression Charge for CNG in respect of the Delhi CGD Network of IGL shall be ₹ 38.58 per MMBTU and ₹ 2.75 per KG respectively with effect from 1st April, 2008. 4.2 As .....

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itted by IGL and that determined by the Board as given in the table above would be reflected through appropriate reduction in selling prices from the date of issuance of this Order. The modalities and time frame for refund of differential Network Tariff and the Compression Charge for CNG for the period from 01.4.2008 till the date of issuance of this Order shall be decided and advised by the Board subsequently. 12. As the factual matrix uncurtains, the issuance of the said order compelled the 1s .....

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aid fulcrum. Mr. Datar, learned senior counsel, apart from many a provision, has also commended us to the objects and reasons of the Act to highlight the role of the Board as a regulator. In view of the said submission, we think it apt to refer to the objects and reasons of the Act. It reads as follows:- An Act to provide for the establishment of Petroleum and Natural Gas Regulatory Board to regulate the refining, processing, storage, transportation, distribution, marketing and sale of petroleum .....

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shall refer to the relevant provisions of the Act. Section 1(4) provides that the Act applies to refining, processing, storage, transportation, distribution, marketing and sale of petroleum, petroleum products and natural gas excluding production of crude oil and natural gas. Section 2(d) of the Act defines authorised entity to mean that any entity registered by the Board under Section 15 to market any notified petroleum, petroleum products or natural gas, or to establish and operate liquefied n .....

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tic, industrial or commercial premises and CNG stations situated in a specified geographical area. 15. Section 2(j) and 2(m) define common carrier and contract carrier respectively. They read as follows:- 2(j) common carrier means such pipelines for transportation of petroleum, petroleum products and natural gas by more than one entity as the Board may declare or authorise from time to time on a nondiscriminatory open access basis under sub-section (3) of section 20, but does not include pipelin .....

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contracts for at least one year as may be declared or authorised by the Board from time to time under sub-section (3) of section 20. 16. The aforesaid definitions basically deal with pipelines and they are regulated under the Act. The dictionary clause speaks of the nature of activity. There is a noticeable difference between common carrier pipeline and contract carrier pipeline on one hand and a city of local natural gas distribution network on the other. On a perusal of the definitions of the .....

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o domestic, industrial or commercial premises and CNG stations situated in a specified geographical area. It deals with specified geographical area. It does not refer to a pipeline or transport of natural gas. It is specifically a pipeline network for transport of natural gas to its own consumers. This being the position, as per the dictionary clause, it is pertinent to refer to Section 20 that provides for declaring, laying, building, etc. of common carrier or contract carrier and city or local .....

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ss to such pipeline or network, it may give wide publicity of its intention to do so and invite objections and suggestions within a specified time from all persons and entitles likely to be affected by such decision. (2) For the purposes of sub-section (1), the Board shall provide the entity owning, the pipeline or network an opportunity of being heard and fix the terms and conditions subject to which the pipeline or network may be declared as a common carrier or contract carrier and pass such o .....

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cess to common carrier or contract carrier or city or local natural gas distribution network; or (d) authorise an entity to lay, build, operate or expand a city or local natural gas distribution network. (4) The Board may decide on the period of exclusivity to lay, build, operate or expand a city or local natural gas distribution network for such number of years as it may by order, determine in accordance with the principles laid down by the regulations made by it, in a transparent manner while .....

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n a reading of the aforesaid provision, it is clear as day that the Board has been conferred with the power to declare an existing pipeline for transportation of petroleum, petroleum products and natural gas or an existing city or local natural gas distribution network as a common carrier or contract carrier and regulate or allow access to such pipeline or network. Sub-Section (1) prescribes for giving wide publicity of the Board s intention. Sub-Section (2) stipulates affording of opportunity o .....

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riod of exclusivity to lay, build, operate or expand a city or local natural gas distribution network for such number of years. The objectives by which the Board is to be guided are promoting competition among entities, avoiding infructuous investment, maintaining or increasing supplies or securing equitable distribution or ensuring adequate availability of petroleum, etc. 17. Section 21 deals with right of first use, etc. The said provision reads as follows: 21. Right of first use, etc.:- (1) T .....

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products throughout the country: Provided that in case of an entity engaged in both marketing of natural gas and laying, building, operating or expanding a pipeline for transportation of natural gas on common carrier or contract carrier basis, the Board shall require such entities to comply with the affiliate code of conduct as may be specified by regulations and may require such entity to separate the activities of marketing of natural gas and the transportation including ownership of the pipel .....

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o institute proceedings before the Board to prevent, or to recover damages for, the infringement of any right relating to authorization. Explanation:- For the purposes of this sub-section, infringement of any right means doing of any act by any person which interferes with common carrier or contract carrier or causes prejudice to the authorised entity. The aforesaid provision stipulates the right of first use and also prescribes certain conditions. 18. Section 22 on which reliance has been place .....

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iency, economic use of the resources, good performance and optimum investments; (b) safeguard the consumer interest and at the same time recovery of cost of transportation in a reasonable manner; (c) the principles rewarding efficiency in performance; (d) the connected infrastructure such as compressors, pumps, metering units, storage and the like connected to the common carriers or contract carriers; (e) benchmarking against a reference tariff calculated based on cost of service, internal rate .....

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consideration is whether reading of the aforesaid provisions namely, Sections 20 to 22 of the Act, it can be construed that they confer any power on the Board to fix the transportation tariff of a consumer of natural gas. We have also referred to sub-Section (4) of Section 20 which confers the power on the Board to decide the period of exclusivity and the network of a common/contract carrier. Section 21, as indicated earlier, deals with the right of first use. The transportation tariff, which fi .....

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am s Family (Remainder Wealth Trust), Hyderabad (1977) 3 SCC 362 this Court was dealing with the expression subject to in the context of the Wealth Tax Act, 1957. Section 3 of the said Act imposed the charge of wealth tax subject to other provisions of the Act. In that context, the Court opined that Section 3 has to be made expressly subject to Section 21 and it must yield to that Section insofar as the latter makes a special provision for assessment of a trustee of a trust. In Ashok Leyland Ltd .....

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the expression is conditional one . 21. In South India Corporation (P) Ltd. v. Secretary, Board of Revenue, Trivandrum and another AIR 1964 SC 207, the Constitution Bench has ruled that the expression subject to in the context convey the idea of a provision yielding place to another provision or other provision to which it was made subject to. In B.S. Vadera and another v. Union of India and others AIR 1969 SC 118, this Court while dealing with the expression any rule so made shall have effect, .....

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ve effect, subject to the provisions of any such Act'. That is, if the appropriate legislature has passed an Act, under Article 309, the rules, framed under the proviso, will have effect,-subject to that Act; but, in the absence of any Act, of the appropriate legislature, on the matter, in our opinion, the rules, made by the President, or by such person as he may direct, are to have full effect, both prospectively, and, retrospectively. Apart from the limitations, pointed out above, there is .....

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ntities; (b) register entities to- (i) market notified petroleum and petroleum products and, subject to the contractual obligations of the Central Government, natural gas; (ii) establish and operate liquefied natural gas terminals; (iii) establish storage facilities for petroleum, petroleum products or natural gas exceeding such capacity as may be specified by regulations; (c) authorise entities to- (i) lay, build, operate or expand a common carrier or contract carrier; (ii) lay, build, operate .....

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s per pipeline access code; (f) in respect of notified petroleum, petroleum products and natural gas(i) ensure adequate availability; (ii) ensure display of information about the maximum retail prices fixed by the entity for consumers at retail outlets; (iii) monitor prices and take corrective measures to prevent restrictive trade practice by the entities; (iv) secure equitable distribution for petroleum and petroleum products; (v) provide, by regulations, and enforce, retail service obligations .....

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oleum products and natural gas, including the construction and operation of pipeline and infrastructure projects related to downstream petroleum and natural gas sector; (j) perform such other functions as may be entrusted to it by the Central Government to carry out the provisions of this Act. Sub-section (e) of Section 11 of the Act is pertinent to appreciate the controversy. It empowers the Board to regulate, by regulations, in respect of certain aspects. Section 11(e) (ii) confers power on th .....

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iating the language employed in the said provision has held that:- We are of the opinion that none of the aforesaid clauses can be construed as prescribing price control/regulation as a function of the Board. Clause (a) supra while prescribing protection of interest of consumers limits the same to, by fostering fair trade and competition amongst entities engaged in distributing, dealing, transporting, marketing gas. The function of the Board thereunder is of regulating the inter se relationship .....

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is not the case of the Board in the present instance. The petitioner even though till date the exclusive marketer of gas in Delhi, has not been accused of any restrictive trade practice and the power exercised also is not in the name of monitoring price. Another sub-clause of clause (f) of Section 11 confers function on the Board to ensure display of information about Maximum Retail Price. Again, had the intent of the legislature been to confer the power on the Board to fix the Maximum Retail Pr .....

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ed in Section 22 for the said provision makes it graphically clear that Section 22 has to yield to Section 11 of the Act which deals with the powers and functions of the Board. Section 11 (e) only uses the words common carrier or contract carrier . Even if one applies the concept of subject matter , in essentiality it is the common carrier and the contract carrier . The dictionary clause of the said expression conveys a different meaning and it does not include an entity which utilizes the pipel .....

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er, after the exclusivity period may have the potentiality to enter into business of the common carrier or contract carrier and at that juncture to maintain the competitive prospects, regard being had to the consumer interest, the Board may determine the price of the same, but a significant one, that does not clothe the Board with the power to command the entity to put/reflect it as a part of the bill to the consumer. It is urged that the Board does not have the power to fix the tariff charges i .....

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s a casus omissus and, therefore, the court must adopt the principle of purposive interpretation and it can do so filling up the gap to have the necessitous fruitful interpretation. Mr. Salve and Mr. Tripathi, per contra, would submit that the legislature has deliberately not done it and, in any case, the Court should not read such a concept into it. Ms. Pinky Anand, learned ASG relying on the affidavit filed by the Union of India, would submit that the legislature has not given the said power t .....

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regard we may, with profit, refer to certain authorities in the field. In CST v. Parson Tools and Plants (1975) 4 SCC 22, the Court has held that if the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or .....

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re PC 1 : 13 ER 562 the Judicial Committee said: We cannot aid the legislature s defective phrasing of an Act, we cannot add and mend and by construction, make up deficiencies which are left there. To do so would be to usurp the function of the legislation. At the same time, it is well settled that in construing the provisions of statute the courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective. Thus, an attempt must always be made t .....

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een stated in Canada Sugar Refining Co. Ltd. v. R., by Lord Davey 1898 AC 735 and proceeded to state thus:- In other words, under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should .....

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e if there is some other construction available . Where to apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result we must do some violence to the words and so achieve that obvious intention and produce a rational construction. [Per Lord Reid in Luke v. IRC (1966 AC 557) where at p. 577 he also observed: this is not a new problem, though our standard of drafting is such that it rarely emerges .] In the light of these principles we will .....

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for the application either of the doctrine of casus omissus or of pressing into service external aids, for in such a case the words used by the Constitution or the statute speak for themselves and it is not the function of the court to add words or expressions merely to suit what the courts think is the supposed intention of the legislature. … 28. In Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc. (2012) 9 SCC 552 it has been opined thus: ...... that it is not the functi .....

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v. Pemsel 1891 AC 531, at p. 549 (HL), that it is not competent to any court to proceed upon the assumption that the legislature has made a mistake. The court must proceed on the footing that the legislature intended what it has said. Even if there is some defect in the phraseology used by the legislature the Court cannot, as pointed out in Crawford v. Spooner (1846-49) 6 Moo PC 1 : 13 ER 582 : 4 MIA 179 : 18 ER 667, aid the legislature s defective phrasing of an Act or add and amend or, by cons .....

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; the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the Judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matt .....

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tation. It is submitted that to read Section 468 CrPC to mean that the period of limitation as period within which a complaint/charge-sheet is to be filed, would amount to adding words to Sections 467 and 468. It is further submitted that if the legislature has left a lacuna, it is not open to the court to fill it on some presumed intention of the legislature. Reliance is placed on Shiv Shakti Coop. Housing Society (2003) 6 SCC 659, Bharat Aluminium (2012) 9 SCC 552 and several other judgments o .....

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of the Law Commission and the Report of the JPC, this Court is only harmoniously construing the provisions of Chapter XXXVI along with other relevant provisions of the Criminal Procedure Code to give effect to the legislative intent and to ensure that its interpretation does not lead to any absurdity. It is not possible to say that the legislature has kept a lacuna which we are trying to fill up by judicial interpretative process so as to encroach upon the domain of the legislature. The authorit .....

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said that legislature has kept a lacuna which the Court is trying to fill up by judicial interpretative process so as to encroach upon the domain of the legislature. In the case at hand, in the schematic context of the Act and upon reading the legislative intention and applying the principle of harmonious construction, we do not perceive inclusion of the entities which are not common carriers or contract carriers would be permissible. They have deliberately not been included under Section 11 of .....

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s in a statute which are not there, but where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meaning, it is permissible to supply the words (Craies Statute Law, 7th edn., p. 109). Similar are the observations in Hameedia Hardware Stores v. B. Mohan Lal Sowcar (1988) 2 SCC 513, 524-25 where it was observed that the court construing a provision should not easi .....

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aforesaid authority as Mr. Datar has respectfully urged that omission in Section 11 is accidental. The test that has been laid down in Surjit Singh Kalra (supra) and other decisions of this Court, we are afraid, do not really support the submission of Mr. Datar. By no stretch of imagination, we can conceive that non-conferment of power on the Board, in particular regard, is accidental. The legislative intention is absolutely clear and simple and, in fact, does not call for adoption of any other .....

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the generality of the foregoing power, such Regulations may provide for all or any of the following matters and the matters have been enumerated thereafter. Mr. Datar has emphasised on Section 61(2)(t), which reads as follows:- (t) the transportations tariffs for common carriers or contract carriers or city or local natural gas distribution network and the manner of determining such tariffs under sub-section (1) of section 22. 34. On a scrutiny of the said provision, we notice that it deals with .....

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ramed. Emphasis has been laid on Regulation 2(e) and 2(g), which read as follows:- (e) compression charge for CNG means a charge (excluding statutory taxes and levies) in Rs./Kg for online compression of natural gas into compressed natural gas (hereinafter referred to as CNG) for subsequent dispensing to consumers in a CNG station. (g) Network tariff means the weighted average unit rate of tariff (excluding statutory taxes and levies) in rupees per million British Thermal Units (Rs./MMBTU for al .....

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nsel, would submit that Section 61 of the Act has to be read in consonance with the objects and reasons of the Act and when the Board has the power to frame regulations to carry out the purposes of the Act, it has framed the Regulations in accordance with the legislation and the High Court has totally flawed in declaring it as ultra vires. 36. We have already dealt with the purport of Section 11, adverted to the facet how the words subject to have to be interpreted, functions of the Board, and p .....

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2003) 3 SCC 321 it has been observed that:- A regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and regulations are all comprised in delegated legislations. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant t .....

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then see if the rules framed satisfy the test of having been so framed as to fall within the scope of such general power confirmed. If rule-making power is not expressed in such a usual general form then it shall have to be seen if the rules made are protected by the limits prescribed by the parent Act. In State of Karnataka v. H. Ganesh Kamath (1983) 2 SCC 402 it has been stated that it is a well-settled principle of interpretation of statutes that the conferment of rule-making power by an Act .....

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blish the pattern of conduct to be followed . 39. In General Officer Commanding-in-Chief v. Subhash Yadav (1988) 2 SCC 351, it has been held as follows:- .....before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely, (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule-making power of the authority framing the rule. If either of these two conditions is not fulf .....

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relatable to the rule. Similarly, a rule must be in accord with the parent statute as it cannot travel beyond it. 41. In Dr. Indramani Pyarelal Gupta v. W.R. Natu AIR 1963 SC 274, the Court has held that one of the tests to determine whether a statutory body is vested with a particular power is to see whether exercise of such power is contra-indicated by any specific provision of the enactment bringing such statutory body into existence. In Tata Power Company Limited v. Reliance Energy Limited ( .....

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nt) Rules, 2005. After discussing at length from various angles, the Court held that:- Statutes delegating the power to make rules follow a standard pattern. The relevant section would first contain a provision granting the power to make rules to the delegate in general terms, by using the words to carry out the provisions of this Act or to carry out the purposes of this Act . This is usually followed by another sub-section enumerating the matters/areas in regard to which specific power is deleg .....

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fic enumerated topics in Section 23(1-A) may not empower the Central Government to make the impugned rule (Rule 44-I), making of the rule can be justified with reference to the general power conferred on the Central Government under Section 23(1), provided the rule does not travel beyond the scope of the Act. But even a general power to make rules or regulations for carrying out or giving effect to the Act, is strictly ancillary in nature and cannot enable the authority on whom the power is conf .....

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