Case BriefsCOVID 19High Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and Prateek Jalan, J., while addressing a Public Interest Litigation, held that,

“fixing of the fare is a complex phenomenon and a decision to be taken by the Government. It is a policy decision and this Court is not inclined to interfere in this policy decision.”

Present Public Interest Litigation was preferred challenging the minimum fares which are fixed by Ministry of Civil Aviation vide its 21st May, 2020 Order.

Petitioners Counsel submitted that the difference in fare prices will lead to fixation of prices by the cartel of the airlines.

Bench while disagreeing with petitioners contention stated that, in the present circumstances when various restrictions have been placed on the airline operations, and maximum limit for air fare is given by the Government, the minimum fare is also prescribed so as to strike a balance between the passengers as well as the airlines agency

Exercise of tariff fixation, and economic matters in general, are issues on which the writ court would generally refrain from exercising jurisdiction, unless found to be totally arbitrary or unreasonable.

Further the Court observed that it ought to be kept in mind that this fixation of minimum and maximum fares is for the journey to be performed only for essential purposes. 

Section 8B(1) of the Aircraft Act, 1934 specifically clothes the Central Government with the power to take necessary measures to minimise the possible danger to public health in the event of outbreak of any dangerous epidemic.

Thus, in view of the COVID19 pandemic, power exercised by respondents cannot be said to be arbitrary or unreasonable.

Ministry of Civil Aviation’s order as mentioned above is only a stop gap arrangement for which present PIL is not tenable.

Lastly the Court concluded it’s  Order by stating that, “problem being faced by everyone during this pandemic situation is such a unique phenomenon that requires experimental solutions. There cannot be any mathematical solution for a problem like this.”

In view of the above observations, petition was disposed of. [Veer Vikrant Chauhan v. UOI, 2020 SCC OnLine Del 627, decided on 04-06-2020]

Case BriefsHigh Courts

Calcutta High Court: Shekhar B. Saraf, J., while allowing the present petition held that,

“Lawyer using a domestic space as his chamber for his livelihood cannot be placed in the commercial category.”

The present writ petition was filed to resolve the issue as to whether a lawyer using a domestic space as his chambers is liable to be charged with a tariff on a commercial basis.

Petitioner who is a practicing lawyer was having a chamber on the ground floor of the multi-storied building where he resided on the third floor. He had made an application for a new electric connection on the ground floor under the category domestic (urban).

CESC Limited had sent the petitioner a quotation for payment of service charges and security deposit on the basis of commercial connection. Later on, receiving the same, the petitioner raised an objection to the said quotation and sought a fresh quotation on the basis of domestic connection.

Aggrieved with the above, the petitioner filed the present petition.

Counsel for the petitioner, Subir Sanyal, submitted that the profession of a lawyer cannot be equated as a commercial activity. Neither the Electricity Act nor any Rules or Regulations framed thereunder define the term “commercial”.

In reference to the above, counsel cited the case — V. Sasidharan v. Peter and Karunakar, (1984) 4 SCC 230, wherein the following was held:

“…under the Shops and Establishment Act, the establishment of a legal practitioner/ firm of lawyers was held not to be a commercial establishment.”

Advocate Rajiv Lall, appearing on behalf of CESC Limited, relied on the Supreme Court decision in,

M.P. Electricity Board v. Shiv Narayan, (2005) 7 SCC 283, to indicate that the activity of a lawyer running an office falls under the category of non-domestic use.

Analysis

High Court on perusal of the Supreme Court decision in M.P. Electricity Board v. Shiv Narayan, (2005) 7 SCC 283, stated that it is evident that the tariff entries in the case before the Supreme Court were of two categories, that is, (a) “domestic purposes” and (b) “commercial and non-domestic purposes”. The Supreme Court after examining held that as the use was not domestic it would fall in the category of “commercial and non-domestic” and further held that running an office is clearly a “non-domestic” use.

“There is a fundamental distinction between a professional activity and an activity of a commercial character, and therefore, it is crystal clear that the legal profession would not fall under the category of ‘Commercial (Urban)’.”

Further, the Court noted that the categorization in the tariff of CESC Ltd. only contains two categories of relevance to the present case:

  • Domestic (Urban)
  • Commercial (Urban)

Thus the Court added that upon reading of the Supreme Court’s decision in M.P. Electricity Board v. Shiv Narayan, (2005) 7 SCC 283,

…it is crystal clear that the legal profession would fall under the category of “non-domestic”

Decision

Hence, the High Court in view of the present case stated that,

 “…space on the ground floor has been taken by the petitioner as an extension of his residence for the use of the space as his legal chamber. The above factual matrix is clearly distinguishable from law firms and proprietorship firms that are having offices in commercial spaces dealing with litigation and non-litigation work.”

Thus, chambers of a litigation lawyer are clearly used for his livelihood, and accordingly, the benefit of doubt is required to be given to such a petitioner placing him in the category of the “Domestic (Urban)”

In view of the above, the writ petition was allowed. [Arup Sarkar v. C.E.S.C. Ltd., 2020 SCC OnLine Cal 295, decided on 11-02-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for Electricity (APTEL): A Division Bench of Manjula Chellur, J. (Member) and S.D. Dubey, (Technical Member) passed an order for implementation of the Tribunal’s order for the payment of the sum of money due with interest.

An application for the implementation of the order was made by the appellant when after a reasonable time the respondent didn’t pay any heed towards the order against them.

Aman Anand, Aman Dixit, counsels for the appellant submitted that the order was received for the payment after increasing the recovery of interim transfer of lignite to 85 percent in place of 70 percent. It was submitted by the appellant that no appeal was pending against the said order. Hence, this application.

R.K. Mehta, Himanshi Andley, P.N. Bhandari, counsels for the respondents, submitted that the matter related to the increase in the tariff was pending in the Commission and that the appellant had rushed to the tribunal prematurely in order to prejudice the pending decision of the Commission.

The Tribunal after submission by the parties held that although the matter is pending in the Commission the payment due is for the previous year and thus the same is to be made by the respondent as per the order of the Tribunal. It was further reiterated that, the said order was passed by this Tribunal at the premise of financial hardship to the generator which was being allowed considerably at less transfer price than they actually claimed. The Court concluded that, the maintenance of judicial discipline is a part of our judicial process. Thus, the order was made for the implementation of the order of the Tribunal in its true spirit.[Barmer Lignite Mining Co. Ltd. v. Rajasthan Electricity Regulatory Commission, 2019 SCC OnLine APTEL 27, decided on 17-05-2019]