LexBINANI ZINC LIMITED versus KERALA STATE ELECTRICITY BOARD AND OTHERS
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[2009] 4 S.C.R. 636 A BINANI ZINC LIMITED ·- V. KERALA STATE ELECTRICITY BOARD AND OTHERS Civil Appeal No. 3492 of 2006 B MARCH 19, 2009 [ S.B. SINHA, ASOK KUMAR GANGULY AND R.M. LODHA, JJ] -- Electricity (Supply) Act, 1948: .. c ss. 49, 59 and 79UJ - Kera/a State Electricity Board - Revision of Tariff by Notification dated 24.10.2002 - KSERC established on 14. 12. 2002 under Electricity Regulatory Commission Act, 1998 as also the Appellate Tribunal constituted under the Electricity Act, 2003 upholding the tariff D revised by the KSEB - HELD: Establishment of a State! Electricity Regulatory Commission uls 17 is directory - )>- • Provisions of 1998 Act vis-a-vis 1948 Act are required to be construed harmoniously - Law does not contemplate a vacuum in its operation - Board had the jurisdiction to revise the tariff-1948 Act was not repealed or replaced by 1998 Act E - 1910 Act, 1948 Act and 1998 Act have been repealed by 2003 Act but actions taken under the repealed Acts have been saved in so far as they are not inconsistent with the provisions of 2003 Act - Regulatory Commission has not been ~ empowered to frame tariff with retrospective effect so as to F cover a period before its constitution - Electricity Act, 1910 - Electricity Regulatory Commission Act, 1998 - s. 29 - Electricity Act, 2003 - s. 185. The State Government of Kerala, pursuant to its G.O. dated 17 .8.2001, entered into an MoU with the Government G of India and constituted the Kerala State Electricity )..~· Commission (KSERC) on 14.12.2002. Meanwhile the ~ respondent- Kerala State Electricity Board revised tariff u/ss 49, 59 and 79U) of the Electricity (Supply) Act, 1948 with effect from 1.10.2002 by issuing the Kerala State H 636 - \ i I BINANI ZINC LIMITED V. KERALA STATE ELECTRICITY 637 BOARD AND OTHERS Electricity Board Extra High Tension Tariff Revision Order, A 2002, This was challenged by the appellant and when the matter reached the KSERC, it by an order dated 30.4.2004 held, inter alia, that on the day the tariff revision Notification dated 24.10.2002 was issued, the Board was to determine the tariff since the Electricity (Supply) Act, B 1948 was still applicable. The finding was upheld by the High Court in appeal. The order of the High Court was challenged under Article 136 of the Constitution of India. It was contended for the appellant that the Electricity Act, 2003 having come into force w.e.f. 10 .. 6.2003, the KSERC C functioning as such prior thereto continued to function as the State Commission under the 2003 Act and it must be held to have considered appellant's petition in terms of the provisions therof. It was also submitted that the 1998 Act having been repealed by the 2003 Act, the appeal preferred before the High Court was not maintainable. D Pursuant to the order of the Supreme Court, the matter' came to be heard by the Appellate Tribunal constituted under the 2003 Act which held that till the State Commission was constituted, the power remained vested in the KSEB to determine the tariff. E · The instant appeal challenging the order of the · Appellate Tribunal was listed before a two-Judge Bench, which noticjng the observations made by another two- J udge Bench in BSES Ltd. and Ors. Vs. Tata Power Company Ltd. 1 referred the matter to the larger Bench. F Answering the reference, the Court · HELD: 1.1 Section 3 of the Electricity Regulatory Commission Act, 1998 Act mandates the Central Government to establish Central Electricity Regulatory G Commission. If the said provision is contrasted with s.17 of the said Act, it would be evident that no such mandate has been imposed on the State Government to constitute 1 2003 (4 ) Suppl. SCR 932 H 638 SUPREME COURT REPORTS [2009] 4 S.C.R A such a Commission. The Parliament advisedly used the words 'may' and 'if it deems fit' in s.17 while using the word 'shall' ins. 3 thereof. Establishment of a State Commission by the State Government, therefore, is directory. It confers some discretionary power on the State Government to B constitute a State Commission. The State, for sufficient and cogent reasons, may refuse to constitute such a Commission or fail or neglect to do so within a reasonable time. For the purpose the Central Government can take recourse to certain measures but the same would not c mean that the court can in exercise of its power of judicial review, issue a writ or order in the
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