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The Andhra Pradesh Electricity Regulatory Commission entertained a Fuel Surcharge Adjustment (FSA) claim made by the Andhra Pradesh Power Co-ordination Committee on behalf of the four Distributing Companies (DISCOMS) in the State for the financial year 2008-09 and by its proceedings dated 05.06.2010 permitted them to levy FSA charges as indicated therein on all consumers, except LT agricultural consumers, for the four quarters of that financial year. The proceedings dated 05.06.2010 came to be challenged before this Court in a batch of writ petitions by aggrieved consumers.=Whether the Andhra Pradesh Power Co-ordination Committee constituted under G.O.Ms.No.59 dated 07.06.2005 has locus standi to file an application on behalf of the four Distributing Companies? 3) Whether the application filed by the Andhra Pradesh Power Co-ordination Committee on behalf of the Distributing Companies is barred by limitation? Whether the Andhra Pradesh Electricity Regulatory Commission has inherent power under Regulation 55 of the Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 to condone such delay? 4) Whether the Andhra Pradesh Electricity Regulatory Commission is obligated to comply with the principles of natural justice while passing the impugned order determining FSA?

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THE HON’BLETHE CHIEF JUSTICE SHRI MADAN B.LOKUR

AND

THE HON’BLE SHRI JUSTICE SANJAY KUMAR

 

WRIT APPEAL NOS.858 OF 2011 AND BATCH

 

DATED 20TH JANUARY, 2012

BETWEEN

 

M/s.Jairaj Ispat Limited,

Plot No.8, Phase-III, I.D.A.,

JeedimetlaHyderabad,

Rep. by its Managing Director,

S.K.Goenka and others.

…Petitioners

 

And

 

A.P. Electricity Regulatory Commission,

Rep. by its Secretary,

A.P. Singareni Bhavan,

Red Hills,

Hyderabad and others.

…Respondents

 

 

 

 

 

THE HON’BLE THE CHIEF JUSTICE SHRI MADAN B.LOKUR

AND

THE HON’BLE SHRI JUSTICE SANJAY KUMAR

 

WRIT APPEAL NOS.858 OF 2011 AND BATCH

 

DATED 20TH JANUARY, 2012

BETWEEN

 

M/s.Jairaj Ispat Limited,

Plot No.8, Phase-III, I.D.A.,

Jeedimetla, Hyderabad,

Rep. by its Managing Director,

S.K.Goenka and others.

…Petitioners

 

And

 

A.P. Electricity Regulatory Commission,

Rep. by its Secretary,

A.P. Singareni Bhavan,

Red Hills,

Hyderabad and others.

…Respondents

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THE HON’BLE THE CHIEF JUSTICE SHRI MADAN B.LOKUR

AND

THE HON’BLE SHRI JUSTICE SANJAY KUMAR

 

WRIT APPEAL NOS.858, 924, 925, 946, 948, 949, 968, 969, 970, 971, 972, 973, 974, 975, 976, 978, 979, 980, 981, 999, 1006, 1007, 1008, 1012, 1022, 1024, 1025, 1026, 1027, 1029, 1031, 1033, 1034, 1049, 1067, 1068, 1097, 1098, 1099, 1121, 1127, 1128, 1130, 1131, 1132, 1133, 1134, 1135, 1136, 1137, 1138, 1159, 1160, 1161, 1162, 1163, 1164, 1165, 1166, 1167, 1168, 1169, 1170, 1171, 1172, 1173, 1174, 1175, 1176, 1177, 1178, 1179, 1180, 1181, 1183, 1184, 1185, 1186, 1187, 1188, 1189, 1190, 1191, 1192, 1193, 1194, 1195, 1196, 1197, 1198, 1199, 1200, 1201, 1202, 1203, 1204, 1205, 1206, 1207, 1208, 1209, 1210, 1211, 1212, 1213, 1214, 1215, 1216, 1217, 1221, 1234, 1235, 1254, 1335, 1336, 1337, 1338, 1339, 1340, 1341, 1342, 1343, 1344, 1346, 1347, 1364, 1365, 1366, 1370, 1371, 1440, 1441, 1442, 1443, 1444, 1445, 1446, 1462, 1463, 1464, 1465, 1466, 1467, 1468, 1469, 1470 OF 2011

AND

1, 21, 41, 42, 43, 44 & 45 OF 2012

 

COMMON JUDGMENT: (Per SK,J)

 

          The Andhra Pradesh Electricity Regulatory Commission entertained a Fuel Surcharge Adjustment (FSA) claim made by the Andhra Pradesh Power Co-ordination Committee on behalf of the four Distributing Companies (DISCOMS) in the State for the financial year 2008-09 and by its proceedings dated 05.06.2010 permitted them to levy FSA charges as indicated therein on all consumers, except LT agricultural consumers, for the four quarters of that financial year. The proceedings dated 05.06.2010 came to be challenged before this Court in a batch of writ petitions by aggrieved consumers.

The learned Judge who heard the writ petitions at great length framed the following questions for consideration:

1)      Whether the writ petitions are maintainable in view of the availability of an alternative remedy of appeal under Section 111 of the Electricity Act, 2003, against the impugned order passed by the Andhra Pradesh Electricity Regulatory Commission?

2)     Whether the Andhra Pradesh Power Co-ordination Committee constituted under G.O.Ms.No.59 dated 07.06.2005 has locus standi to file an application on behalf of the four Distributing Companies?

3)     Whether the application filed by the Andhra Pradesh Power Co-ordination Committee on behalf of the Distributing Companies is barred by limitation? Whether the Andhra Pradesh Electricity Regulatory Commission has inherent power under Regulation 55 of the Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 to condone such delay?

4)     Whether the Andhra Pradesh Electricity Regulatory Commission is obligated to comply with the principles of natural justice while passing the impugned order determining FSA?

 

By common order dated 29.07.2011, the learned Judge summarized his findings to the effect that though the alternative remedy of appeal was available against the impugned orders, the writ petitions were maintainable; that the Andhra Pradesh Power Co-ordination Committee, not being a licensee as defined under Section 2(39) of the Electricity Act, 2003, had nolocus standi to file an application before the A.P. Electricity Regulatory Commission claiming FSA on behalf of the DISCOMS; that under Regulation 55 of the Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) Regulations, 1999, the Andhra Pradesh Electricity Regulatory Commission has no inherent power to condone the delay enabling it to entertain applications claiming FSA beyond the time prescribed in Regulation 45-B(4) thereof; that the A.P. Electricity Regulatory Commission however has the power to condone the delay in filing of applications by the licensees claiming FSA even beyond the time prescribed under Regulation 59 thereof; and that while considering the applications filed by the licensees claiming FSA, the Commission has to follow the principles of natural justice. Holding so, the learned Judge set aside the impugned proceedings dated 05.06.2010 passed by the A.P. Electricity Regulatory Commission (hereinafter, ‘the Commission’) and allowed the writ petitions.

The writ petitioners are however aggrieved by the finding of the learned Judge that the Commission can condone the delay in the filing of FSA applications by the licensees beyond the specified period by exercising powers under Regulation 59 of the Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 (hereinafter, ‘the Business Regulations’). Hence, these appeals.

At the time of admission of these appeals, the Court was informed that proceedings had been initiated afresh before the Commission pursuant to the order under appeal. The Commission was accordingly permitted to go on with the said proceedings upto the stage of passing a final order but was directed not to give effect to the same. We are told that the proceedings are still in progress.

As neither the Commission nor the DISCOMS chose to assail the findings of the learned Judge which went against them, those aspects may be taken to be settled and are not open to question in these appeals.

The short issue that falls for our consideration is whether the Commission has the power under Regulation 59 of the Business Regulations to condone the delay and entertain FSA applications filed by the licensees beyond the time prescribed under Regulation 45-B(4) thereof.

The Commission was constituted under the provisions of the Andhra Pradesh Electricity Reform Act, 1998 (hereinafter referred to as ‘the Act of 1998’) for restructuring the electricity industry by rationalization of generation, transmission, distribution and supply of electricity avenues and for taking such measures as were necessary and conducive for the development and management of the electricity industry in an efficient, economic and competitive manner. The Commission was entitled under Section 26(2) of the Act of 1998 to prescribe the terms and conditions for determination of the licensee’s revenue and tariffs be it by regulations or in such other manner as it considered appropriate. The licensee, as defined under Section 2(e) of the Act of 1998, was a person licensed under Section 14 thereof to transmit or supply energy and included the Transmission Corporation of Andhra Pradesh Limited (APTRANSCO). Upon determination of the tariff by the Commission such tariff was not to be amended more frequently than once in a financial year ordinarily except in respect of any changes expressly permitted under the terms of any fuel surcharge formula prescribed by Regulations [Section 26(9) of the Act of 1998]. Further, the licensee had no power under the above provision to amend any tariff unless the same was approved by the Commission.

The Electricity Act, 2003 (hereinafter, ‘the Act of 2003’) came into force from 10.06.2003. Several existing laws were repealed thereby. The Act of 1998 however stood saved under the repeal and saving provision in Section 185 thereof. Section 185(3) of the Act of 2003 states to the effect that the provisions of the enactments specified in the Schedule, to the extent not inconsistent with the provisions of the Act of 2003, would continue to apply to the States in which those enactments were applicable. The Act of 1998 finds mention at Sl.No.3 in the Schedule. In any event, Section 62(4) of the Act of 2003 also reiterates that no tariff may ordinarily be amended more frequently than once in any financial year except in respect of any changes expressly permitted under the terms of any fuel surcharge formula as may be specified.

The overall thrust of the legal regime obtaining under the aforestated legislations is to see that there is stability and certainty in the tariff. Reference in this regard may be made to Section 61 of the Act of 2003 which states that the ‘Appropriate Commission’ while determining the tariff shall safeguard the consumers’ interest and at the same time provide for recovery of the cost of electricity in a reasonable manner. ‘Appropriate Commission’ is defined under Section 2(4) of the Act of 2003 to include the State Regulatory Commissions constituted or continued under Section 82 thereof.

Section 181 of the Act of 2003 confers power on the State Commissions to make Regulations consistent with the Act of 2003 and the Rules generally to carry out the provisions thereof. Similarly, Sections 9(2) and 54 of the Act of 1998 empower the Commission to frame Regulations for conduct of its proceedings and discharge/performance of its functions. It is in exercise of these powers that the Commission promulgated Regulation No.2 dated 05.07.1999 titled the ‘Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) Regulations, 1999’. Thereafter, by Regulation No.8 dated 28.08.2000, named as the ‘Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) First Amendment Regulations, 2000’, Chapter IV-A was introduced in the Business Regulations. This Chapter dealt with tariffs and comprised Regulations 45-A, 45-B and 45-C. Regulation 45-B dealt with FSA and required a licensee to provide to the Commission its calculation of each FSA with such documentation and other information as may be necessary for the purpose of verifying the correctness of the adjustments. Various other aspects were dealt with in the other sub-clauses of this Regulation but no time stipulation finds mention in so far as the submission of data by the licensee is concerned. By Amendment Regulation 1 of 2003 dated 17.07.2003 titled the ‘Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) Amendment Regulation 1 of 2003’, Regulation 45-B of the Business Regulations was amended in respect of the formula for determining FSA as well as other aspects relevant thereto.

Crucial for the purpose of these cases is the substituted Regulation 45-B(4) of the Business Regulations. The amended Regulation 45-B(4) reads as under:

“APTRANSCO must file with the Commission all information (including sales data from the DISCOMS/RESCOs) required for calculation of the Fuel Surcharge Adjustment within 30 days of the end of the respective quarter failing which it will forfeit any future claims on this account for such quarter. DISCOMS/ RESCOs should use actual consumption details of the relevant quarter when levying FSA.”

 

After the unbundling of the APTRANSCO into the four DISCOMS, it is the DISCOMS that must file the information for calculation of FSA under the above Regulation. However, it is the time stipulation introduced by way of this amendment in 2003 that lays foundation for the present litigation.

It may also be noticed that the original Business Regulations framed under Regulation No.2 dated 05.07.1999 confer certain powers on the Commission. Under Regulation 55 thereof, the Commission is vested with inherent powers. Regulation 55 reads as under:

“55. Saving of inherent power of the Commission

 

(1) Nothing in these Regulations shall be deemed to limit or otherwise affect the inherent power of the Commission to make such orders as may be necessary for meeting the ends of justice or to prevent the abuse of the process of the Commission.

 

(2) Nothing in these Regulations shall bar the Commission from adopting a procedure, which is at variance with any of the provisions of these Regulations, if the Commission, in view of the special circumstances of a matter or class of matters and for reasons to be recorded in writing, deems it necessary or expedient.

 

(3) Nothing in these Regulations shall, expressly or impliedly, bar the Commission to deal with any matter or exercise any power under the Act for which no Regulations have been framed, and the Commission may deal with such matters, powers and functions in a manner it thinks fit.”

 

Under Regulation 59, the Commission is clothed with the power of relaxing the prescribed time stipulations. Regulation 59 reads as under:

“59. Extension or abridgment of time prescribed

Subject to the provisions of the Act, the time prescribed by these Regulations or by order of the Commission for doing any act may be extended (whether it has already expired or not) or abridged for sufficient reason by order of the Commission.”

 

It is in the milieu of these Regulations that we are called upon to resolve whether the Commission can condone delay beyond the time prescribed for submission of information for calculation of FSA.

Appearing for the appellants, Sri C.Kodandaram, learned senior counsel representing Sri Challa Gunaranjan; Sri K.Gopal Choudary, Sri C.R.Sridharan, Sri K.V.Upendra Gupta, Sri D.V.Nagarjuna Babu, Sri Dhulipalla VAS Ravi Prasad, K.Raghu Babu, learned counsel, advanced the following arguments:

The scheme and structure of the legislations and the Regulations framed thereunder are aimed at maintaining certainty of the tariff during the year so as to prevent the consumer from being subjected to constant variations in the price that he has to pay for electricity. No doubt, Section 26(9) of the Act of 1998 and Section 62(4) of the Act of 2003 permit variation in this regard under the terms of the specified FSA formula. However, the amendment of the Business Regulations by the Commission clearly spelt out its intention to see that a temporal control is placed upon the licensee even in this regard so that the consumers are not mulcted with belated accumulated demands on the count of FSA.  The amended Regulation 45-B(4) of the Business Regulations would have to be given full effect as per its clear language and the purport thereof could not be defeated by resorting to the general Regulations which were there in the statute book long prior to its insertion. The default clause in Regulation 45-B(4) demonstrates in clear and unambiguous terms that after the stipulated period of 30 days, the APTRANSCO/DISCOMS/RESCOs would forfeit any future FSA claims for that quarter. The Commission could not therefore exercise powers under Regulation 59 to extend the time beyond the stipulated 30 days and the said Regulation has no application to Regulation 45-B(4). Regulation 45-B(4), being a special rule which came into existence subsequently, would override the general rule – Regulation 59. The learned Judge therefore erred in permitting the Commission to entertain applications from the licensees for the purpose of exercising powers under Regulation 59 of the Business Regulations and the order under appeal needs correction to that extent.

Refuting the above contentions, Sri P.Sri Raghuram, learned counsel for the Commission, and Sri D.Prakash Reddy, learned senior counsel representing the DISCOMS, made the following submissions:

There is no conflict between Regulations 45-B(4) and 59 of the Business Regulations. It is only in the case of such conflict that the question of considering whether a special rule would prevail over the general rule would arise. Limitation prescribed by law is only a matter of procedure and the right, by itself, would not stand extinguished. Vesting the Commission with the power to revive such a right under Regulation 59 is in public interest as the DISCOMS would otherwise have to forfeit revenues to which they were lawfully entitled as the Tariff Order issued in March, 2008 by the Commission for the financial year 2008-09 clearly prescribed that FSA would be extra. Regulation 55 of the Business Regulations confers wide powers on the Commission, encompassing specified and unspecified situations, so as to allow it to meet the ends of justice. Regulations 55 and 59 are akin to Sections 151 and 148 of the Code of Civil Procedure (CPC) respectively. The inherent powers vested in the Commission are wider than those conferred upon the Civil Court by Section 151 CPC as the Commission is even permitted to deviate from the prescribed procedure. Regulation 45-B(4) dilutes the statutory right of the DISCOMS under Section 61(d) of the Act of 2003 to recover the cost of electricity and to that extent it must be read down by allowing the Commission to exercise powers under Regulation 59. Proceedings have again been initiated before the Commission in this regard pursuant to the learned Judge’s order and it would be open to the appellants to raise these jurisdictional issues also before the Commission. The writ appeals are liable to be dismissed on this short ground.

In reply, learned senior counsel/learned counsel for the appellants stated as under:

The formula prescribed under the amended Regulation 45-B involves several variable parameters and it is not correct to equate the same to a mere arithmetical exercise. The Commission would thus be handicapped if proper data and information are not promptly furnished in this regard. Determination of FSA founded on incomplete and belated data provided by the licensee would be detrimental to the consumer. There must therefore be contemporaneity in the timely determination and levy of FSA. Section 61(d) of the Act of 2003 requires the Commission to balance the interest of the consumers while safeguarding the right of the licensee to recover the cost of electricity. Such recovery must be made in a reasonable manner as per the Section itself. The comparison sought to be drawn between the provisions of the CPC and the Business Regulations does not stand to reason. Regulation 59 cannot be equated with Section 148 CPC in the context of Regulation 45-B(4) which spells out the consequences of failure to comply with the stipulated temporal requirement. Once the forfeiture envisioned under the said Regulation comes into operation, the consumers would stand relieved of their liability and such liability could not be revived by exercising the general powers under Regulation 59. The forfeiture clause is a later introduction in the legal fabric, as Regulation 45-B(4) came to be amended only in the year 2003. It must therefore have precedence and primacy over Regulation 59 which is of earlier vintage. Thus, Regulation 59 has no role to play in the context of Regulation 45-B(4). The learned Judge erred in holding to the contrary.

Section 9(2) of the Act of 1998 makes it clear that the Commission has exclusive power to make Regulations for the conduct of its proceedings and the discharge of its functions. The only requirement is that such Regulations should first be published in the Official Gazette. The Business Regulations framed by the Commission upon publication in the Official Gazette would therefore be final and determinative in terms of what they postulate. We are not inclined to reopen the issue as to whether Regulation 55 of the Business Regulations has any role to play in the matter. Upon a detailed analysis, the learned Judge unequivocally held that Regulation 55 does not enable the Commission to entertain an application for claiming FSA beyond the time prescribed in Regulation 45-B(4). In the absence of an independent appeal or challenge by the respondents, this conclusion of the learned Judge which has attained finality does not warrant examination or interference. Similarly, the contention of the learned counsel for the respondents that the writ appeals are liable to be dismissed as not maintainable does not merit consideration. Examining this challenge, the learned Judge opined that as the writ petitioners complained that the Commission had committed a jurisdictional error in exercising its powers, the writ petitions would be maintainable notwithstanding the availability of an alternative remedy. The same principle would apply while considering the challenge of the appellants herein as to the interplay between Regulations 45-B(4) and 59 of the Business Regulations. Further, the finding of the learned Judge in this regard remains unchallenged. We therefore reject the contention advanced by the learned counsel for the respondents in this regard.

Regulation 45-B(4) mandates that the DISCOMS must file with the Commission all information required for calculation of the FSA within 30 days of the end of the respective quarter, failing which they would forfeit any future claim on this account for such quarter. It is not in dispute that the DISCOMS failed to file the data within 30 days from the end of each quarter for the financial year 2008-09 as required under the above Regulation. The Andhra Pradesh Power Co-ordination Committee submitted FSA claims on behalf of the four DISCOMS in the State for all the four quarters of the financial year 2008-09 under its letter dated 12.08.2009. This was well beyond the 30 days period stipulated in the Regulation for each of the four quarters of that year. The said claim was however found to be defective and was followed up with a revised claim submitted by the Committee under letter dated 10.02.2010. It was on the basis of this revised claimed dated 10.02.2010 that the Commission passed the impugned proceedings dated 05.06.2010 permitting the levy of FSA for the four quarters of the financial year 2008-09. Demonstrably, there was complete and total violation of the time stipulation prescribed in Regulation 45-B(4) while submitting the FSA claim.

The defective revised FSA claim submitted by the Committee and the orders passed thereon having been set aside by the learned Judge, the issue presently is whether the Commission can entertain fresh FSA claims from the DISCOMS for that period by condoning the delay in their submission in the context of Regulation 45-B(4) by exercising powers under Regulation 59.

The power under Regulation 59, as is explicit from the language used therein, is subject to the provisions of the Act of 2003. Subject to this limitation, the Commission is armed by this Regulation to extend or abridge the time prescribed by the Regulations or by an order of the Commission for doing any act. The power of extension can be exercised by the Commission irrespective of whether the time prescribed has already expired or not. Notably, this Regulation formed part of the original Regulations framed by the Commission under Regulation No.2 dated 05.07.1999. On the other hand, it was only under the Amendment Regulation 1 of 2003 dated 17.07.2003, that Regulation 45-B(4) as it presently stands came into existence. Prior thereto, when the Business Regulations were modified by Regulation No.8 dated 28.08.2000 and Chapter IV-A of the Business Regulations came to be inserted, there was no mention in Regulation 45-B as to any adversity flowing from delay on the part of the licensees in furnishing information for determination of FSA. Only penalties were leviable in the event of furnishing wrong data. That being so, the reason for introducing a time stipulation in this regard under the later amendment in the year 2003 cannot be lost sight of. The intention underlying this amendment is manifest from the forfeiture clause which was introduced in the Regulation. In no uncertain terms, the Regulation now makes it clear that the failure on the part of the DISCOMS to file the required information within the stipulated 30 days period would entail forfeiture of any future claims on account of FSA for the concerned quarter.

We are not impressed with the submission advanced by learned counsel for the Commission that there is no friction between Regulations 45-B(4) and 59 of the Business Regulations. The consequences of the failure to abide by the time stipulation in Regulation 45-B(4) being clear, the question as to whether such failure can be brushed aside by condoning the delay under Regulation 59 clearly puts the two Regulations in conflict. Learned counsel for the Commission relied upon the Principles of Statutory Interpretation by Justice G.P.Singh, Eight Edition 2001, wherein the learned Author stated that a statute must be read as a whole and that one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute and that such a construction has the merit of avoiding any inconsistency or repugnancy either within a Section or between a Section and other parts of the statute. In this context, the learned Author said that it was the duty of the Courts to avoid ‘a head on clash’ between two Sections of the same Act and, whenever it is possible to do so, to construe provisions which appear to conflict so that they harmonize. It may however be noticed that the learned Author thereafter referred to the maxims ‘Generalia specialibus non derogant’ and ‘Generalibus specialia derogant’ and stated that if a special provision is made on a certain matter, that matter is excluded from the general provision.

The latin maxim Generalibus specialia derogant means that special things derogate from general things. One of the applications of the Rule of Harmonious Construction is that when there is a law generally dealing with a subject and another dealing particularly with one of the topics comprised therein, the general law is to be construed as yielding to the special in respect of the matters contained therein. The principle that the particular or special rule must control or cut down the general rule is however inapplicable where the two provisions do not relate to the same subject [See BENGAL IMMUNITY CO. LTD. v. STATE OF BIHAR[1]].

In the light of the above principle, it would have to be seen whether Regulation 45-B(4) would submit to Regulation 59 or would operate independently.

In MAYA MATHEW v. STATE OF KERALA[2], the Supreme Court summed up the legal position as under:

“12. The rules of interpretation when a subject is governed by two sets of rules are well settled. They are:

(i)                 When a provision of law regulates a particular subject and a subsequent law contains a provision regulating the same subject, there is no presumption that the latter law repeals the earlier law. The rule-making authority while making the later rule is deemed to know the existing law on the subject. If the subsequent law does not repeal the earlier rule, there can be no presumption of an intention to repeal the earlier rule;

(ii)              When two provisions of law – one being a general law and the other being a special law govern a matter, the court should endeavour to apply a harmonious construction to the said provisions. But where the intention of the rule-making authority is made clear either expressly or impliedly, as to which law should prevail, the same shall be given effect.

(iii)            If the repugnancy or inconsistency subsists in spite of an effort to read them harmoniously, the prior special law is not presumed to be repealed by the later general law. The prior special law will continue to apply and prevail in spite of the subsequent general law. But where a clear intention to make a rule of universal application by superseding the earlier special law is evident from the later general law, then the later general law, will prevail over the prior special law.

(iv)             Where a later special law is repugnant to or inconsistent with an earlier general law, the later special law will prevail over the earlier general law.”

 

Dealing with the Special Recruitment Rules therein which were framed later in point of time when compared to the General Rules, the Supreme Court observed:

“17. These decisions reiterate the position that if the intention of the rule-making authority is to make a later general rule to apply to all services in the State, for which different earlier special rules exist, then the existing special rules will give way to such later general rule. That is, where the general rule is made subsequent to the special rule and the language of the general rule signified that it was intended to apply to all services and prevail over any prior special rules, the intention of the rule-making authority should be given effect by applying the subsequent general rule instead of the earlier special rule.

 

18. This Court held that the language of Note (3) to Rule 5 of General Rules showed that it was intended to prevail over existing Special Rules which indicated a contrary position. What is significant is that the two decisions considered the Special Rules that were earlier in point of time to the General Rules as amended by the 1992 Amendment rules which introduced Note (3) to Rule 5 of the General Rules.

 

19. This Court held, on reading the General Rules in conjunction with the Special Rules, that Note (3) to Rule 5 of General Rules will prevail over the corresponding provisions in the Special Rules showing a different intention, when deciding whether the ratio of each feeder category should be determined with reference to the cadre strength or existing vacancies.

 

20. What logically follows from the principle enunciated in the two decisions is that if any special rule is subsequent to the general rule, then the question of examining whether the prior general rule will prevail over a later special rule will not arise at all having regard to the categorical provision contained in Rule 2 of the General Rules. The principle laid down in those decisions will not apply where the special rule is made subsequent to the general rule.”

 

In the result, the Supreme Court held that the later Special Rules prevailed over the earlier General Rules.

A law enacted by the legislature is to be enforced in the proper perspective. The provisions of a statute, including every word, have to be given full effect keeping the legislative intent in mind in order to ensure that the projected objective is achieved. In order words, no provision can be treated to have been enacted purposelessly. The Court should not give such an interpretation to the provision which would render the provision ineffective or odious [BALWANT SINGH v. JAGDISH SINGH[3]].

Applying the above principle, in AMCHONG TEA ESTATE v. UNION OF INDIA[4]the Supreme Court held that the period of limitation prescribed under Section 35 of the Central Excise Act, 1944 would override the general law of limitation and therefore the appellate authority under the Central Excise Act, 1944 had no power to condone the delay beyond the prescribed period by invoking Section 5 of the Limitation Act, 1963.

Earlier, in COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE v. HONGO INDIA PRIVATE LIMITED[5], the Supreme Court dealt with the question whether the High Court had the power to condone the delay in presentation of a reference under Section 35(H)(1) of the Central Excise Act, 1944 by applying Section 5 of the Limitation Act. In this context, the Supreme Court observed:

“35. It was contended before us that the words “expressly excluded” would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.

 

36. The scheme of the Central Excise Act, 1944 supports the conclusion that the time-limit prescribed under Section 35-H(1) to make a reference to the High Court is absolute and unextendable by a court under Section 5 of the Limitation Act. It is well-settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Limitation Act.”

 

We are not impressed with the submission of the learned counsel for the Commission that the time stipulation in Regulation 45-B(4) should be likened to that introduced in the amended Section 148 CPC and that guidance can be gleaned as to its construction from the Judgment of the Supreme Court in SALEM ADVOCATES BAR ASSOCIATION, TAMIL NADU v. UNION OF INDIA[6]. The Supreme Court was dealing therein with the amendment of Section 148 CPC prescribing that the period enlarged shall not exceed 30 days in total. The Supreme Court was of the opinion that this restriction would not denude the Court’s inherent power under Section 151 CPC for meeting the ends of justice and/or to prevent abuse of process. The Supreme Court however pointed out that it was not dealing with a case where the time for doing an act had been prescribed under the provisions of the Limitation Act, which could not be extended either under Section 148 or Section 151 CPC, and that it was dealing with a case where the time was fixed or granted by the Court itself for performance of an act prescribed or allowed by the court. It is in this context that the Supreme Court came to the conclusion that non-grant of extension beyond 30 days under the amended Section 148 CPC would amount to failure of justice and as the object of the Code is not to promote failure of justice, the provision has to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the Court would have inherent power under Section 151 CPC to extend the time even beyond 30 days.

The above Judgment has no bearing or application to the case on hand. As pointed out by the Supreme Court, the inherent powers of the Court cannot ordinarily be exercised to extend the limitation/time stipulations prescribed in the statute. In the present case, enlargement or abridgement of time by the Commission under Regulation 59 is not only with regard to the time prescribed by it in its own orders but also the time prescribed in the statutory regulations themselves. Pertinent to note, other than Regulation 45-B(4) one can find stipulations as to time in various other Regulations. For example, under Regulation 18(2) thirty days time is prescribed for a party to file an application to set aside an ex parte order or a ‘dismissed for default’ order. Under Regulation 32(1)(i), an applicant for a license is required to publish notice of his application within 14 days from the date of his application and every local authority, utility or person desirous of making any representation to the Commission with reference to such application may do so within three months of the issue of the first advertisement. Regulations 14 and 30 speak of instances where the Commission itself would specify time stipulations in its orders. Notably, no adverse effects are coupled with any of these time stipulations as has been done in Regulation 45-B(4). Regulation 59 would undoubtedly have application to such time stipulations.

The submission of the learned counsel for the respondents that the expression ‘subject to the provisions of the Act’ which prefaces the power of the Commission under Regulation 59 would mean that the other Regulations contained in the Business Regulations have no control or effect upon such power does not hold water. The Regulations would necessarily have to operate in harmony and cannot be interpreted in a manner which introduces internal conflict and chaos in their construction and application. The prefatory ‘subject to the provisions of the Act’ therefore has to be read to mean that the power of the Commission under the said Regulation cannot override any statutory provision and no more. It does not have the effect of immunizing Regulation 59 and isolating it from the other Business Regulations.

The general rule to be followed in the case of a conflict between two provisions is that the later abrogates the earlier one (Leges posteriors priores contrarias abrogant). To this general rule there is a well known exception, namely, Generalia specialibus non derogant (general things do not derogate from special things). In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied:

(i)                 The two are inconsistent with each other.

(ii)              There is some express reference in the later to the earlier enactment.”

 

If either of these two conditions is fulfilled, the later law, even though general, would prevail [AJOY KUMAR BANERJEE v. UNION OF INDIA[7]].

In the present case, as the special law, by way of the amended Regulation 45-B(4), made its advent into the Business Regulations long after the conferment of the general power on the Commission under Regulation 59 to enlarge/abridge the time stipulated, there can be no doubt that the later Regulation would prevail in the event of inconsistency. We are fortifiedin our view by the unequivocal observations made by the Supreme Court in MAYA MATHEW2 that the special rule framed subsequent to the general rule would undoubtedly prevail.

As the amended Regulation 45-B(4) makes it explicit that failure to abide by the time stipulation contained therein enjoins forfeiture of future claims by the DISCOMS in that regard, it cannot be placed on par with the other Regulations which contain simple time stipulations unhindered by adverse consequences flowing from failure of compliance. The power of the Commission under Regulation 59 to enlarge time even after expiry of the stipulated time cannot therefore be extended to a situation covered by Regulation 45-B(4). The inevitable consequence flowing from the failure to abide by the time stipulation in Regulation 45-B(4) cannot be rendered nugatory by the Commission by allowing extension of time under Regulation 59. Permitting the same would render superfluous the forfeiture clause in Regulation 45-B(4). Had it been the intention of the Commission that its power under Regulation 59 should not be whittled down, it would have taken care to see that Regulation 45-B(4) was not worded in such absolute terms. In view of the clear and explicit language employed in the amended Regulation 45-B(4), the logical consequence would be that the power of the Commission under Regulation 59 would be eclipsed to that extent and situations covered by Regulation 45-B(4) stand excluded. This is the only manner in which the two Regulations can be harmoniously construed.

We are therefore unable to agree with the learned Judge that nothing in the language of Regulation 45-B(4) precludes the Commission from extending the time prescribed therein by exercising power under Regulation 59.

On the above analysis, we are of the opinion that in a situation covered by Regulation 45-B(4), it is not open to the Commission to step in and undo the irreversible consequence of the failure to abide by the time stipulation therein, i.e., forfeiture of future FSA claims by the DISCOMS for such period, by taking recourse to Regulation 59 of the Business Regulations. The Commission has no such power and must necessarily give effect to the forfeiture clause stipulated in the Regulation. Being an independent and autonomous body mantled with the balancing of consumers’ interests with that of the DISCOMS in recovering the cost of electricity in a reasonable manner, the Commission cannot seek to favour one side as it has chosen to do in the present case.

In the result, we hold that the Andhra Pradesh Electricity Regulatory Commission has no power under Regulation 59 of the Business Regulations to enlarge the time stipulated in Regulation 45-B(4) thereof for the purpose of entertaining applications from the DISCOMS for determination of FSA. Such claims by the DISCOMS for the financial year 2008-09 are therefore hopelessly time barred.

The Writ Appeals are accordingly allowed. Parties shall bear their own costs.

 

 

_______________________

MADAN B.LOKUR, CJ.

 

 

 

____________________

SANJAY KUMAR, J.

20TH JANUARY, 2012.

Note: L.R.Copy to be marked.

(B/O)VGSR

 

 

*THE HON’BLE THE CHIEF JUSTICE SHRI MADAN B.LOKUR

AND

THE HON’BLE SHRI JUSTICE SANJAY KUMAR

 

WRIT APPEAL NOS.858 OF 2011 AND BATCH

 

% 20-01-2012

 

# M/s.Jairaj Ispat Limited,

Plot No.8, Phase-III, I.D.A.,

Jeedimetla, Hyderabad,

Rep. by its Managing Director,

S.K.Goenka and others.

                                                         …      Appellants

 

Vs.

 

$ A.P. Electricity Regulatory Commission,

Rep. by its Secretary,

A.P. Singareni Bhavan,

Red Hills,

Hyderabad and others.                                         …     Respondents

 

<GIST:

 

 

>HEAD NOTE:

 

 

! Counsel for appellants                    :  Sri C.Kodandaram, learned

senior counsel for Sri Challa

Gunaranjan,

Sri K.Gopal Choudary,

Sri C.R.Sridharan,

Sri K.V.Upendra Gupta,

Sri D.V.Nagarjuna Babu,

Sri Dhulipalla VAS Ravi Prasad,

Sri K.Raghu Babu.

 

^ Counsel for respondents                :  Sri P.Sri Raghuram,

Sri D.Prakash Reddy,

learned senior counsel

representing the DISCOMS.

 

? CASES REFERRED:

 

1)    AIR 1955 SC 661

2)    (2010) 4 SCC 498

3)    (2010) 8 SCC 685

4)    2010 (257) ELT 3 (SC)

5)    (2009) 5 SCC 791

6)    (2005) 6 SCC 344

7)    (1984) 3 SCC 127

 


[1]       AIR 1955 SC 661

[2]       (2010) 4 SCC 498

[3]       (2010) 8 SCC 685

[4]       2010 (257) ELT 3 (SC)

[5]          (2009) 5 SCC 791

[6]       (2005) 6 SCC 344

[7]        (1984) 3 SCC 127

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THE HON’BLE THE CHIEF JUSTICE SHRI MADAN B.LOKUR

AND

THE HON’BLE SHRI JUSTICE SANJAY KUMAR

 

WRIT APPEAL NOS.858, 924, 925, 946, 948, 949, 968, 969, 970, 971, 972, 973, 974, 975, 976, 978, 979, 980, 981, 999, 1006, 1007, 1008, 1012, 1022, 1024, 1025, 1026, 1027, 1029, 1031, 1033, 1034, 1049, 1067, 1068, 1097, 1098, 1099, 1121, 1127, 1128, 1130, 1131, 1132, 1133, 1134, 1135, 1136, 1137, 1138, 1159, 1160, 1161, 1162, 1163, 1164, 1165, 1166, 1167, 1168, 1169, 1170, 1171, 1172, 1173, 1174, 1175, 1176, 1177, 1178, 1179, 1180, 1181, 1183, 1184, 1185, 1186, 1187, 1188, 1189, 1190, 1191, 1192, 1193, 1194, 1195, 1196, 1197, 1198, 1199, 1200, 1201, 1202, 1203, 1204, 1205, 1206, 1207, 1208, 1209, 1210, 1211, 1212, 1213, 1214, 1215, 1216, 1217, 1221, 1234, 1235, 1254, 1335, 1336, 1337, 1338, 1339, 1340, 1341, 1342, 1343, 1344, 1346, 1347, 1364, 1365, 1366, 1370, 1371, 1440, 1441, 1442, 1443, 1444, 1445, 1446, 1462, 1463, 1464, 1465, 1466, 1467, 1468, 1469, 1470 OF 2011

AND

1, 21, 41, 42, 43, 44 & 45 OF 2012

 

COMMON JUDGMENT: (Per SK,J)

 

          The Andhra Pradesh Electricity Regulatory Commission entertained a Fuel Surcharge Adjustment (FSA) claim made by the Andhra Pradesh Power Co-ordination Committee on behalf of the four Distributing Companies (DISCOMS) in the State for the financial year 2008-09 and by its proceedings dated 05.06.2010 permitted them to levy FSA charges as indicated therein on all consumers, except LT agricultural consumers, for the four quarters of that financial year. The proceedings dated 05.06.2010 came to be challenged before this Court in a batch of writ petitions by aggrieved consumers.

The learned Judge who heard the writ petitions at great length framed the following questions for consideration:

1)      Whether the writ petitions are maintainable in view of the availability of an alternative remedy of appeal under Section 111 of the Electricity Act, 2003, against the impugned order passed by the Andhra Pradesh Electricity Regulatory Commission?

2)     Whether the Andhra Pradesh Power Co-ordination Committee constituted under G.O.Ms.No.59 dated 07.06.2005 has locus standi to file an application on behalf of the four Distributing Companies?

3)     Whether the application filed by the Andhra Pradesh Power Co-ordination Committee on behalf of the Distributing Companies is barred by limitation? Whether the Andhra Pradesh Electricity Regulatory Commission has inherent power under Regulation 55 of the Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 to condone such delay?

4)     Whether the Andhra Pradesh Electricity Regulatory Commission is obligated to comply with the principles of natural justice while passing the impugned order determining FSA?

 

By common order dated 29.07.2011, the learned Judge summarized his findings to the effect that though the alternative remedy of appeal was available against the impugned orders, the writ petitions were maintainable; that the Andhra Pradesh Power Co-ordination Committee, not being a licensee as defined under Section 2(39) of the Electricity Act, 2003, had nolocus standi to file an application before the A.P. Electricity Regulatory Commission claiming FSA on behalf of the DISCOMS; that under Regulation 55 of the Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) Regulations, 1999, the Andhra Pradesh Electricity Regulatory Commission has no inherent power to condone the delay enabling it to entertain applications claiming FSA beyond the time prescribed in Regulation 45-B(4) thereof; that the A.P. Electricity Regulatory Commission however has the power to condone the delay in filing of applications by the licensees claiming FSA even beyond the time prescribed under Regulation 59 thereof; and that while considering the applications filed by the licensees claiming FSA, the Commission has to follow the principles of natural justice. Holding so, the learned Judge set aside the impugned proceedings dated 05.06.2010 passed by the A.P. Electricity Regulatory Commission (hereinafter, ‘the Commission’) and allowed the writ petitions.

The writ petitioners are however aggrieved by the finding of the learned Judge that the Commission can condone the delay in the filing of FSA applications by the licensees beyond the specified period by exercising powers under Regulation 59 of the Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 (hereinafter, ‘the Business Regulations’). Hence, these appeals.

At the time of admission of these appeals, the Court was informed that proceedings had been initiated afresh before the Commission pursuant to the order under appeal. The Commission was accordingly permitted to go on with the said proceedings upto the stage of passing a final order but was directed not to give effect to the same. We are told that the proceedings are still in progress.

As neither the Commission nor the DISCOMS chose to assail the findings of the learned Judge which went against them, those aspects may be taken to be settled and are not open to question in these appeals.

The short issue that falls for our consideration is whether the Commission has the power under Regulation 59 of the Business Regulations to condone the delay and entertain FSA applications filed by the licensees beyond the time prescribed under Regulation 45-B(4) thereof.

The Commission was constituted under the provisions of the Andhra Pradesh Electricity Reform Act, 1998 (hereinafter referred to as ‘the Act of 1998’) for restructuring the electricity industry by rationalization of generation, transmission, distribution and supply of electricity avenues and for taking such measures as were necessary and conducive for the development and management of the electricity industry in an efficient, economic and competitive manner. The Commission was entitled under Section 26(2) of the Act of 1998 to prescribe the terms and conditions for determination of the licensee’s revenue and tariffs be it by regulations or in such other manner as it considered appropriate. The licensee, as defined under Section 2(e) of the Act of 1998, was a person licensed under Section 14 thereof to transmit or supply energy and included the Transmission Corporation of Andhra Pradesh Limited (APTRANSCO). Upon determination of the tariff by the Commission such tariff was not to be amended more frequently than once in a financial year ordinarily except in respect of any changes expressly permitted under the terms of any fuel surcharge formula prescribed by Regulations [Section 26(9) of the Act of 1998]. Further, the licensee had no power under the above provision to amend any tariff unless the same was approved by the Commission.

The Electricity Act, 2003 (hereinafter, ‘the Act of 2003’) came into force from 10.06.2003. Several existing laws were repealed thereby. The Act of 1998 however stood saved under the repeal and saving provision in Section 185 thereof. Section 185(3) of the Act of 2003 states to the effect that the provisions of the enactments specified in the Schedule, to the extent not inconsistent with the provisions of the Act of 2003, would continue to apply to the States in which those enactments were applicable. The Act of 1998 finds mention at Sl.No.3 in the Schedule. In any event, Section 62(4) of the Act of 2003 also reiterates that no tariff may ordinarily be amended more frequently than once in any financial year except in respect of any changes expressly permitted under the terms of any fuel surcharge formula as may be specified.

The overall thrust of the legal regime obtaining under the aforestated legislations is to see that there is stability and certainty in the tariff. Reference in this regard may be made to Section 61 of the Act of 2003 which states that the ‘Appropriate Commission’ while determining the tariff shall safeguard the consumers’ interest and at the same time provide for recovery of the cost of electricity in a reasonable manner. ‘Appropriate Commission’ is defined under Section 2(4) of the Act of 2003 to include the State Regulatory Commissions constituted or continued under Section 82 thereof.

Section 181 of the Act of 2003 confers power on the State Commissions to make Regulations consistent with the Act of 2003 and the Rules generally to carry out the provisions thereof. Similarly, Sections 9(2) and 54 of the Act of 1998 empower the Commission to frame Regulations for conduct of its proceedings and discharge/performance of its functions. It is in exercise of these powers that the Commission promulgated Regulation No.2 dated 05.07.1999 titled the ‘Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) Regulations, 1999’. Thereafter, by Regulation No.8 dated 28.08.2000, named as the ‘Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) First Amendment Regulations, 2000’, Chapter IV-A was introduced in the Business Regulations. This Chapter dealt with tariffs and comprised Regulations 45-A, 45-B and 45-C. Regulation 45-B dealt with FSA and required a licensee to provide to the Commission its calculation of each FSA with such documentation and other information as may be necessary for the purpose of verifying the correctness of the adjustments. Various other aspects were dealt with in the other sub-clauses of this Regulation but no time stipulation finds mention in so far as the submission of data by the licensee is concerned. By Amendment Regulation 1 of 2003 dated 17.07.2003 titled the ‘Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) Amendment Regulation 1 of 2003’, Regulation 45-B of the Business Regulations was amended in respect of the formula for determining FSA as well as other aspects relevant thereto.

Crucial for the purpose of these cases is the substituted Regulation 45-B(4) of the Business Regulations. The amended Regulation 45-B(4) reads as under:

“APTRANSCO must file with the Commission all information (including sales data from the DISCOMS/RESCOs) required for calculation of the Fuel Surcharge Adjustment within 30 days of the end of the respective quarter failing which it will forfeit any future claims on this account for such quarter. DISCOMS/ RESCOs should use actual consumption details of the relevant quarter when levying FSA.”

 

After the unbundling of the APTRANSCO into the four DISCOMS, it is the DISCOMS that must file the information for calculation of FSA under the above Regulation. However, it is the time stipulation introduced by way of this amendment in 2003 that lays foundation for the present litigation.

It may also be noticed that the original Business Regulations framed under Regulation No.2 dated 05.07.1999 confer certain powers on the Commission. Under Regulation 55 thereof, the Commission is vested with inherent powers. Regulation 55 reads as under:

“55. Saving of inherent power of the Commission

 

(1) Nothing in these Regulations shall be deemed to limit or otherwise affect the inherent power of the Commission to make such orders as may be necessary for meeting the ends of justice or to prevent the abuse of the process of the Commission.

 

(2) Nothing in these Regulations shall bar the Commission from adopting a procedure, which is at variance with any of the provisions of these Regulations, if the Commission, in view of the special circumstances of a matter or class of matters and for reasons to be recorded in writing, deems it necessary or expedient.

 

(3) Nothing in these Regulations shall, expressly or impliedly, bar the Commission to deal with any matter or exercise any power under the Act for which no Regulations have been framed, and the Commission may deal with such matters, powers and functions in a manner it thinks fit.”

 

Under Regulation 59, the Commission is clothed with the power of relaxing the prescribed time stipulations. Regulation 59 reads as under:

“59. Extension or abridgment of time prescribed

Subject to the provisions of the Act, the time prescribed by these Regulations or by order of the Commission for doing any act may be extended (whether it has already expired or not) or abridged for sufficient reason by order of the Commission.”

 

It is in the milieu of these Regulations that we are called upon to resolve whether the Commission can condone delay beyond the time prescribed for submission of information for calculation of FSA.

Appearing for the appellants, Sri C.Kodandaram, learned senior counsel representing Sri Challa Gunaranjan; Sri K.Gopal Choudary, Sri C.R.Sridharan, Sri K.V.Upendra Gupta, Sri D.V.Nagarjuna Babu, Sri Dhulipalla VAS Ravi Prasad, K.Raghu Babu, learned counsel, advanced the following arguments:

The scheme and structure of the legislations and the Regulations framed thereunder are aimed at maintaining certainty of the tariff during the year so as to prevent the consumer from being subjected to constant variations in the price that he has to pay for electricity. No doubt, Section 26(9) of the Act of 1998 and Section 62(4) of the Act of 2003 permit variation in this regard under the terms of the specified FSA formula. However, the amendment of the Business Regulations by the Commission clearly spelt out its intention to see that a temporal control is placed upon the licensee even in this regard so that the consumers are not mulcted with belated accumulated demands on the count of FSA.  The amended Regulation 45-B(4) of the Business Regulations would have to be given full effect as per its clear language and the purport thereof could not be defeated by resorting to the general Regulations which were there in the statute book long prior to its insertion. The default clause in Regulation 45-B(4) demonstrates in clear and unambiguous terms that after the stipulated period of 30 days, the APTRANSCO/DISCOMS/RESCOs would forfeit any future FSA claims for that quarter. The Commission could not therefore exercise powers under Regulation 59 to extend the time beyond the stipulated 30 days and the said Regulation has no application to Regulation 45-B(4). Regulation 45-B(4), being a special rule which came into existence subsequently, would override the general rule – Regulation 59. The learned Judge therefore erred in permitting the Commission to entertain applications from the licensees for the purpose of exercising powers under Regulation 59 of the Business Regulations and the order under appeal needs correction to that extent.

Refuting the above contentions, Sri P.Sri Raghuram, learned counsel for the Commission, and Sri D.Prakash Reddy, learned senior counsel representing the DISCOMS, made the following submissions:

There is no conflict between Regulations 45-B(4) and 59 of the Business Regulations. It is only in the case of such conflict that the question of considering whether a special rule would prevail over the general rule would arise. Limitation prescribed by law is only a matter of procedure and the right, by itself, would not stand extinguished. Vesting the Commission with the power to revive such a right under Regulation 59 is in public interest as the DISCOMS would otherwise have to forfeit revenues to which they were lawfully entitled as the Tariff Order issued in March, 2008 by the Commission for the financial year 2008-09 clearly prescribed that FSA would be extra. Regulation 55 of the Business Regulations confers wide powers on the Commission, encompassing specified and unspecified situations, so as to allow it to meet the ends of justice. Regulations 55 and 59 are akin to Sections 151 and 148 of the Code of Civil Procedure (CPC) respectively. The inherent powers vested in the Commission are wider than those conferred upon the Civil Court by Section 151 CPC as the Commission is even permitted to deviate from the prescribed procedure. Regulation 45-B(4) dilutes the statutory right of the DISCOMS under Section 61(d) of the Act of 2003 to recover the cost of electricity and to that extent it must be read down by allowing the Commission to exercise powers under Regulation 59. Proceedings have again been initiated before the Commission in this regard pursuant to the learned Judge’s order and it would be open to the appellants to raise these jurisdictional issues also before the Commission. The writ appeals are liable to be dismissed on this short ground.

In reply, learned senior counsel/learned counsel for the appellants stated as under:

The formula prescribed under the amended Regulation 45-B involves several variable parameters and it is not correct to equate the same to a mere arithmetical exercise. The Commission would thus be handicapped if proper data and information are not promptly furnished in this regard. Determination of FSA founded on incomplete and belated data provided by the licensee would be detrimental to the consumer. There must therefore be contemporaneity in the timely determination and levy of FSA. Section 61(d) of the Act of 2003 requires the Commission to balance the interest of the consumers while safeguarding the right of the licensee to recover the cost of electricity. Such recovery must be made in a reasonable manner as per the Section itself. The comparison sought to be drawn between the provisions of the CPC and the Business Regulations does not stand to reason. Regulation 59 cannot be equated with Section 148 CPC in the context of Regulation 45-B(4) which spells out the consequences of failure to comply with the stipulated temporal requirement. Once the forfeiture envisioned under the said Regulation comes into operation, the consumers would stand relieved of their liability and such liability could not be revived by exercising the general powers under Regulation 59. The forfeiture clause is a later introduction in the legal fabric, as Regulation 45-B(4) came to be amended only in the year 2003. It must therefore have precedence and primacy over Regulation 59 which is of earlier vintage. Thus, Regulation 59 has no role to play in the context of Regulation 45-B(4). The learned Judge erred in holding to the contrary.

Section 9(2) of the Act of 1998 makes it clear that the Commission has exclusive power to make Regulations for the conduct of its proceedings and the discharge of its functions. The only requirement is that such Regulations should first be published in the Official Gazette. The Business Regulations framed by the Commission upon publication in the Official Gazette would therefore be final and determinative in terms of what they postulate. We are not inclined to reopen the issue as to whether Regulation 55 of the Business Regulations has any role to play in the matter. Upon a detailed analysis, the learned Judge unequivocally held that Regulation 55 does not enable the Commission to entertain an application for claiming FSA beyond the time prescribed in Regulation 45-B(4). In the absence of an independent appeal or challenge by the respondents, this conclusion of the learned Judge which has attained finality does not warrant examination or interference. Similarly, the contention of the learned counsel for the respondents that the writ appeals are liable to be dismissed as not maintainable does not merit consideration. Examining this challenge, the learned Judge opined that as the writ petitioners complained that the Commission had committed a jurisdictional error in exercising its powers, the writ petitions would be maintainable notwithstanding the availability of an alternative remedy. The same principle would apply while considering the challenge of the appellants herein as to the interplay between Regulations 45-B(4) and 59 of the Business Regulations. Further, the finding of the learned Judge in this regard remains unchallenged. We therefore reject the contention advanced by the learned counsel for the respondents in this regard.

Regulation 45-B(4) mandates that the DISCOMS must file with the Commission all information required for calculation of the FSA within 30 days of the end of the respective quarter, failing which they would forfeit any future claim on this account for such quarter. It is not in dispute that the DISCOMS failed to file the data within 30 days from the end of each quarter for the financial year 2008-09 as required under the above Regulation. The Andhra Pradesh Power Co-ordination Committee submitted FSA claims on behalf of the four DISCOMS in the State for all the four quarters of the financial year 2008-09 under its letter dated 12.08.2009. This was well beyond the 30 days period stipulated in the Regulation for each of the four quarters of that year. The said claim was however found to be defective and was followed up with a revised claim submitted by the Committee under letter dated 10.02.2010. It was on the basis of this revised claimed dated 10.02.2010 that the Commission passed the impugned proceedings dated 05.06.2010 permitting the levy of FSA for the four quarters of the financial year 2008-09. Demonstrably, there was complete and total violation of the time stipulation prescribed in Regulation 45-B(4) while submitting the FSA claim.

The defective revised FSA claim submitted by the Committee and the orders passed thereon having been set aside by the learned Judge, the issue presently is whether the Commission can entertain fresh FSA claims from the DISCOMS for that period by condoning the delay in their submission in the context of Regulation 45-B(4) by exercising powers under Regulation 59.

The power under Regulation 59, as is explicit from the language used therein, is subject to the provisions of the Act of 2003. Subject to this limitation, the Commission is armed by this Regulation to extend or abridge the time prescribed by the Regulations or by an order of the Commission for doing any act. The power of extension can be exercised by the Commission irrespective of whether the time prescribed has already expired or not. Notably, this Regulation formed part of the original Regulations framed by the Commission under Regulation No.2 dated 05.07.1999. On the other hand, it was only under the Amendment Regulation 1 of 2003 dated 17.07.2003, that Regulation 45-B(4) as it presently stands came into existence. Prior thereto, when the Business Regulations were modified by Regulation No.8 dated 28.08.2000 and Chapter IV-A of the Business Regulations came to be inserted, there was no mention in Regulation 45-B as to any adversity flowing from delay on the part of the licensees in furnishing information for determination of FSA. Only penalties were leviable in the event of furnishing wrong data. That being so, the reason for introducing a time stipulation in this regard under the later amendment in the year 2003 cannot be lost sight of. The intention underlying this amendment is manifest from the forfeiture clause which was introduced in the Regulation. In no uncertain terms, the Regulation now makes it clear that the failure on the part of the DISCOMS to file the required information within the stipulated 30 days period would entail forfeiture of any future claims on account of FSA for the concerned quarter.

We are not impressed with the submission advanced by learned counsel for the Commission that there is no friction between Regulations 45-B(4) and 59 of the Business Regulations. The consequences of the failure to abide by the time stipulation in Regulation 45-B(4) being clear, the question as to whether such failure can be brushed aside by condoning the delay under Regulation 59 clearly puts the two Regulations in conflict. Learned counsel for the Commission relied upon the Principles of Statutory Interpretation by Justice G.P.Singh, Eight Edition 2001, wherein the learned Author stated that a statute must be read as a whole and that one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute and that such a construction has the merit of avoiding any inconsistency or repugnancy either within a Section or between a Section and other parts of the statute. In this context, the learned Author said that it was the duty of the Courts to avoid ‘a head on clash’ between two Sections of the same Act and, whenever it is possible to do so, to construe provisions which appear to conflict so that they harmonize. It may however be noticed that the learned Author thereafter referred to the maxims ‘Generalia specialibus non derogant’ and ‘Generalibus specialia derogant’ and stated that if a special provision is made on a certain matter, that matter is excluded from the general provision.

The latin maxim Generalibus specialia derogant means that special things derogate from general things. One of the applications of the Rule of Harmonious Construction is that when there is a law generally dealing with a subject and another dealing particularly with one of the topics comprised therein, the general law is to be construed as yielding to the special in respect of the matters contained therein. The principle that the particular or special rule must control or cut down the general rule is however inapplicable where the two provisions do not relate to the same subject [See BENGAL IMMUNITY CO. LTD. v. STATE OF BIHAR[1]].

In the light of the above principle, it would have to be seen whether Regulation 45-B(4) would submit to Regulation 59 or would operate independently.

In MAYA MATHEW v. STATE OF KERALA[2], the Supreme Court summed up the legal position as under:

“12. The rules of interpretation when a subject is governed by two sets of rules are well settled. They are:

(i)                 When a provision of law regulates a particular subject and a subsequent law contains a provision regulating the same subject, there is no presumption that the latter law repeals the earlier law. The rule-making authority while making the later rule is deemed to know the existing law on the subject. If the subsequent law does not repeal the earlier rule, there can be no presumption of an intention to repeal the earlier rule;

(ii)              When two provisions of law – one being a general law and the other being a special law govern a matter, the court should endeavour to apply a harmonious construction to the said provisions. But where the intention of the rule-making authority is made clear either expressly or impliedly, as to which law should prevail, the same shall be given effect.

(iii)            If the repugnancy or inconsistency subsists in spite of an effort to read them harmoniously, the prior special law is not presumed to be repealed by the later general law. The prior special law will continue to apply and prevail in spite of the subsequent general law. But where a clear intention to make a rule of universal application by superseding the earlier special law is evident from the later general law, then the later general law, will prevail over the prior special law.

(iv)             Where a later special law is repugnant to or inconsistent with an earlier general law, the later special law will prevail over the earlier general law.”

 

Dealing with the Special Recruitment Rules therein which were framed later in point of time when compared to the General Rules, the Supreme Court observed:

“17. These decisions reiterate the position that if the intention of the rule-making authority is to make a later general rule to apply to all services in the State, for which different earlier special rules exist, then the existing special rules will give way to such later general rule. That is, where the general rule is made subsequent to the special rule and the language of the general rule signified that it was intended to apply to all services and prevail over any prior special rules, the intention of the rule-making authority should be given effect by applying the subsequent general rule instead of the earlier special rule.

 

18. This Court held that the language of Note (3) to Rule 5 of General Rules showed that it was intended to prevail over existing Special Rules which indicated a contrary position. What is significant is that the two decisions considered the Special Rules that were earlier in point of time to the General Rules as amended by the 1992 Amendment rules which introduced Note (3) to Rule 5 of the General Rules.

 

19. This Court held, on reading the General Rules in conjunction with the Special Rules, that Note (3) to Rule 5 of General Rules will prevail over the corresponding provisions in the Special Rules showing a different intention, when deciding whether the ratio of each feeder category should be determined with reference to the cadre strength or existing vacancies.

 

20. What logically follows from the principle enunciated in the two decisions is that if any special rule is subsequent to the general rule, then the question of examining whether the prior general rule will prevail over a later special rule will not arise at all having regard to the categorical provision contained in Rule 2 of the General Rules. The principle laid down in those decisions will not apply where the special rule is made subsequent to the general rule.”

 

In the result, the Supreme Court held that the later Special Rules prevailed over the earlier General Rules.

A law enacted by the legislature is to be enforced in the proper perspective. The provisions of a statute, including every word, have to be given full effect keeping the legislative intent in mind in order to ensure that the projected objective is achieved. In order words, no provision can be treated to have been enacted purposelessly. The Court should not give such an interpretation to the provision which would render the provision ineffective or odious [BALWANT SINGH v. JAGDISH SINGH[3]].

Applying the above principle, in AMCHONG TEA ESTATE v. UNION OF INDIA[4]the Supreme Court held that the period of limitation prescribed under Section 35 of the Central Excise Act, 1944 would override the general law of limitation and therefore the appellate authority under the Central Excise Act, 1944 had no power to condone the delay beyond the prescribed period by invoking Section 5 of the Limitation Act, 1963.

Earlier, in COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE v. HONGO INDIA PRIVATE LIMITED[5], the Supreme Court dealt with the question whether the High Court had the power to condone the delay in presentation of a reference under Section 35(H)(1) of the Central Excise Act, 1944 by applying Section 5 of the Limitation Act. In this context, the Supreme Court observed:

“35. It was contended before us that the words “expressly excluded” would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.

 

36. The scheme of the Central Excise Act, 1944 supports the conclusion that the time-limit prescribed under Section 35-H(1) to make a reference to the High Court is absolute and unextendable by a court under Section 5 of the Limitation Act. It is well-settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Limitation Act.”

 

We are not impressed with the submission of the learned counsel for the Commission that the time stipulation in Regulation 45-B(4) should be likened to that introduced in the amended Section 148 CPC and that guidance can be gleaned as to its construction from the Judgment of the Supreme Court in SALEM ADVOCATES BAR ASSOCIATION, TAMIL NADU v. UNION OF INDIA[6]. The Supreme Court was dealing therein with the amendment of Section 148 CPC prescribing that the period enlarged shall not exceed 30 days in total. The Supreme Court was of the opinion that this restriction would not denude the Court’s inherent power under Section 151 CPC for meeting the ends of justice and/or to prevent abuse of process. The Supreme Court however pointed out that it was not dealing with a case where the time for doing an act had been prescribed under the provisions of the Limitation Act, which could not be extended either under Section 148 or Section 151 CPC, and that it was dealing with a case where the time was fixed or granted by the Court itself for performance of an act prescribed or allowed by the court. It is in this context that the Supreme Court came to the conclusion that non-grant of extension beyond 30 days under the amended Section 148 CPC would amount to failure of justice and as the object of the Code is not to promote failure of justice, the provision has to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the Court would have inherent power under Section 151 CPC to extend the time even beyond 30 days.

The above Judgment has no bearing or application to the case on hand. As pointed out by the Supreme Court, the inherent powers of the Court cannot ordinarily be exercised to extend the limitation/time stipulations prescribed in the statute. In the present case, enlargement or abridgement of time by the Commission under Regulation 59 is not only with regard to the time prescribed by it in its own orders but also the time prescribed in the statutory regulations themselves. Pertinent to note, other than Regulation 45-B(4) one can find stipulations as to time in various other Regulations. For example, under Regulation 18(2) thirty days time is prescribed for a party to file an application to set aside an ex parte order or a ‘dismissed for default’ order. Under Regulation 32(1)(i), an applicant for a license is required to publish notice of his application within 14 days from the date of his application and every local authority, utility or person desirous of making any representation to the Commission with reference to such application may do so within three months of the issue of the first advertisement. Regulations 14 and 30 speak of instances where the Commission itself would specify time stipulations in its orders. Notably, no adverse effects are coupled with any of these time stipulations as has been done in Regulation 45-B(4). Regulation 59 would undoubtedly have application to such time stipulations.

The submission of the learned counsel for the respondents that the expression ‘subject to the provisions of the Act’ which prefaces the power of the Commission under Regulation 59 would mean that the other Regulations contained in the Business Regulations have no control or effect upon such power does not hold water. The Regulations would necessarily have to operate in harmony and cannot be interpreted in a manner which introduces internal conflict and chaos in their construction and application. The prefatory ‘subject to the provisions of the Act’ therefore has to be read to mean that the power of the Commission under the said Regulation cannot override any statutory provision and no more. It does not have the effect of immunizing Regulation 59 and isolating it from the other Business Regulations.

The general rule to be followed in the case of a conflict between two provisions is that the later abrogates the earlier one (Leges posteriors priores contrarias abrogant). To this general rule there is a well known exception, namely, Generalia specialibus non derogant (general things do not derogate from special things). In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied:

(i)                 The two are inconsistent with each other.

(ii)              There is some express reference in the later to the earlier enactment.”

 

If either of these two conditions is fulfilled, the later law, even though general, would prevail [AJOY KUMAR BANERJEE v. UNION OF INDIA[7]].

In the present case, as the special law, by way of the amended Regulation 45-B(4), made its advent into the Business Regulations long after the conferment of the general power on the Commission under Regulation 59 to enlarge/abridge the time stipulated, there can be no doubt that the later Regulation would prevail in the event of inconsistency. We are fortifiedin our view by the unequivocal observations made by the Supreme Court in MAYA MATHEW2 that the special rule framed subsequent to the general rule would undoubtedly prevail.

As the amended Regulation 45-B(4) makes it explicit that failure to abide by the time stipulation contained therein enjoins forfeiture of future claims by the DISCOMS in that regard, it cannot be placed on par with the other Regulations which contain simple time stipulations unhindered by adverse consequences flowing from failure of compliance. The power of the Commission under Regulation 59 to enlarge time even after expiry of the stipulated time cannot therefore be extended to a situation covered by Regulation 45-B(4). The inevitable consequence flowing from the failure to abide by the time stipulation in Regulation 45-B(4) cannot be rendered nugatory by the Commission by allowing extension of time under Regulation 59. Permitting the same would render superfluous the forfeiture clause in Regulation 45-B(4). Had it been the intention of the Commission that its power under Regulation 59 should not be whittled down, it would have taken care to see that Regulation 45-B(4) was not worded in such absolute terms. In view of the clear and explicit language employed in the amended Regulation 45-B(4), the logical consequence would be that the power of the Commission under Regulation 59 would be eclipsed to that extent and situations covered by Regulation 45-B(4) stand excluded. This is the only manner in which the two Regulations can be harmoniously construed.

We are therefore unable to agree with the learned Judge that nothing in the language of Regulation 45-B(4) precludes the Commission from extending the time prescribed therein by exercising power under Regulation 59.

On the above analysis, we are of the opinion that in a situation covered by Regulation 45-B(4), it is not open to the Commission to step in and undo the irreversible consequence of the failure to abide by the time stipulation therein, i.e., forfeiture of future FSA claims by the DISCOMS for such period, by taking recourse to Regulation 59 of the Business Regulations. The Commission has no such power and must necessarily give effect to the forfeiture clause stipulated in the Regulation. Being an independent and autonomous body mantled with the balancing of consumers’ interests with that of the DISCOMS in recovering the cost of electricity in a reasonable manner, the Commission cannot seek to favour one side as it has chosen to do in the present case.

In the result, we hold that the Andhra Pradesh Electricity Regulatory Commission has no power under Regulation 59 of the Business Regulations to enlarge the time stipulated in Regulation 45-B(4) thereof for the purpose of entertaining applications from the DISCOMS for determination of FSA. Such claims by the DISCOMS for the financial year 2008-09 are therefore hopelessly time barred.

The Writ Appeals are accordingly allowed. Parties shall bear their own costs.

 

 

_______________________

MADAN B.LOKUR, CJ.

 

 

 

____________________

SANJAY KUMAR, J.

20TH JANUARY, 2012.

Note: L.R.Copy to be marked.

(B/O)VGSR

 

 

*THE HON’BLE THE CHIEF JUSTICE SHRI MADAN B.LOKUR

AND

THE HON’BLE SHRI JUSTICE SANJAY KUMAR

 

WRIT APPEAL NOS.858 OF 2011 AND BATCH

 

% 20-01-2012

 

# M/s.Jairaj Ispat Limited,

Plot No.8, Phase-III, I.D.A.,

Jeedimetla, Hyderabad,

Rep. by its Managing Director,

S.K.Goenka and others.

                                                         …      Appellants

 

Vs.

 

$ A.P. Electricity Regulatory Commission,

Rep. by its Secretary,

A.P. Singareni Bhavan,

Red Hills,

Hyderabad and others.                                         …     Respondents

 

<GIST:

 

 

>HEAD NOTE:

 

 

! Counsel for appellants                    :  Sri C.Kodandaram, learned

senior counsel for Sri Challa

Gunaranjan,

Sri K.Gopal Choudary,

Sri C.R.Sridharan,

Sri K.V.Upendra Gupta,

Sri D.V.Nagarjuna Babu,

Sri Dhulipalla VAS Ravi Prasad,

Sri K.Raghu Babu.

 

^ Counsel for respondents                :  Sri P.Sri Raghuram,

Sri D.Prakash Reddy,

learned senior counsel

representing the DISCOMS.

 

? CASES REFERRED:

 

1)    AIR 1955 SC 661

2)    (2010) 4 SCC 498

3)    (2010) 8 SCC 685

4)    2010 (257) ELT 3 (SC)

5)    (2009) 5 SCC 791

6)    (2005) 6 SCC 344

7)    (1984) 3 SCC 127

 


[1]       AIR 1955 SC 661

[2]       (2010) 4 SCC 498

[3]       (2010) 8 SCC 685

[4]       2010 (257) ELT 3 (SC)

[5]          (2009) 5 SCC 791

[6]       (2005) 6 SCC 344

[7]        (1984) 3 SCC 127

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