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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 ..... tail/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, 'DVC' for short, is a statutory body under the Damodar Valley Corporation Act, 1948 (for short Act of 1948). DVC generates electricity and is a deemed licensee under the Electricity Act, 2003 (for short Act of 2003) as per section 14 of the said Act of 1948. Apart from generating electricity, DVC also carries on interstate and intrastate transmission, distribution and supply of electricity to various consumers in the States of West Bengal and Jharkhand (erstwhile Bihar). Respondent/writ petitioners are the consumers of electricity from DVC. Part VII of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, 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 Court for discharge of the bank guarantee. The said bank guarantee shall be furnished within a period of one week from date. There shall be an unconditional stay of the impugned demands raised by the D.V.C. for a period of one week from date. In the event, the bank guarantee is furnished, the stay shall continue until further orders. It is needless to mention that furnishing of bank guarantee shall ultimately abide by the result of the decision of the West Bengal Electricity Regulatory Commission to be passed on the basis of the application to be file by the D.V.C. on or before 31st December, 2013. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 lest they be overburdened with arrears upon final fixation of tariff. He submitted furnishing of bank guarantee in terms of the order of the First Court cannot give a better right in favour of writ petitioners vis a vis other consumers in the matter of representation before the Commission. Oral hearing of consumers was not envisaged in the scheme of the Act and the same would cause unnecessary delay and protraction in the matter of fixation of tariff under section 64 of Act of 2003. Per contra, Mr. Bandyopadhyay, learned counsel appearing for the respondent/writ petitioners submitted that there was nothing in law which expressly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds 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 sub‐section (1) and after considering all suggestions and objections received from the public,‐‐ (a) issue a tariff order accepting the application with such modifications or such conditions as may be specified in that order; (b) reject the application for reasons to be recorded in writing if such application is not in accordance with the provisions of this Act and the rules and regulations made thereunder or the provisions of any other law for the time being in force: Provided that an applicant shall be given a reasonable opportunity of being heard before rejecting his application. (4) The Appropriate Commission shall, within seven days of making the order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a manner as specified in these regulations for any purpose. iii) Hearing wherever provided in these regulations shall always be supported by a written submission which shall be compatible with the oral submission made during hearing. The issue(s) raised in the written submission of any hearing will only be considered as the content of hearing in the proceeding by the Commission. Reading of the aforesaid regulation in the light of the statutory provision leaves no doubt in one's mind that suggestions or objections to the application for determination of tariff must be in written form only and not by way of oral representation. The scheme of the Act and the regulations framed thereunder make it amply clear that the State C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milton 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 of enquiry, nature of the decision taken and prejudice, if any, caused to a party in course of such decision making process if only written representation is considered are relevant parameters to decide whether oral hearing is a mandatory requirement in a decision making process. In many cases it has been held that notwithstanding absence of an opportunity of oral hearing, decision making process cannot be faulted on the anvil of fairness or breach of principles of natural justice. Whether denial of oral hearing amounts to a breach of principles of natural justice and fair procedure is to be decided on the factual matrix of each case. In Gorkha Security Services Vs. Government (NCT of Delhi) & Ors., (2014)9 SCC 105 the Apex Court held that although principles of natural justice are a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 therefore not adversorial in nature as in the course of a disciplinary proceeding against a particular delinquent. In view of the aforesaid nature of the proceeding and the fact that the Commission is required to arrive at an informed decision relating to tariff fixation within a time frame under a statutory scheme which requires considering written objections/representations only of the objectors including consumers, it is difficult to come to a conclusion that it was the intention of the legislature to provide oral hearing to objectors/consumers at the time of determination of tariff by the State Commission under section 64 of the Act of 2003. Authorities cited by the respondent/writ petitioners are of no assistance in view of the present factual matrix. In D.P. Jadav (supra) the Apex Court held that principles of natural justice were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8208; "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 opportunity for personal hearing was also granted, though Regulation 6(18) does not even speak to grant such an opportunity. Keeping in view what was observed in B. Karunakaranʹs case (supra) there was no question of violation of principles of natural justice. xxx xxxx xxx 23. As was observed by this Court we need not go into ʹuseless formality theoryʹ in detail; in view of the fact that no prejudice has been shown. As is rightly pointed out by learned counsel for the appellants unless failure of justice is occasioned or that it would not be in public interest to dismiss a petition on the fact situation of a case, this Court may refuse to exercise said jurisdiction (see Gadde Venkateswara Rao v. Govt. of A.P. and Ors. (AIR 1966 SC 828). It is to be noted that legal formulations cannot be divorced from the fact situation of the case. Personal hearing was granted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted 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 hold that no right of oral hearing can be said to subsist in the objectors and there is no corresponding legal duty in the Commission to provide such hearing in the course of determination of tariff fixation under section 64 of the Act. In other words, denial of oral hearing to the respondent/writ petitioners by the State Commission at the time considering their written objections under section 64 of the Act by itself would not be a ground to invalidate the decision making process. More particularly when grievance, if any, against the order of the State Commission is remediable by way of a full hearing on facts and in law before the Appellate Tribunal under section 111 of the Act as per the statutory scheme. Next comes the issue as to whether the writ petitioners in the instant case ought to be given an opportunity of hearing on an equitable premise as they have been saddled with the liability of furnishing bank guarantee by the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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