BIBIN .T. ALAPATT v. THE UNION OF INDIA

BY ADVS. SRI.JOSEPH KODIANTHARA (SR.) SRI.JAGADEESH LAKSHMAN, CGC MAAROOF KUMAR A P.J.ANILKUMAR G.MINI P.S.SREE PRASAD MATHEW A KUZHALANADAN KURIAKOSE VARGHESE V.SHYAMOHAN GEORGE J.NALAPPAT SRADHAXNA MUDRIKA SRI.P.S.APPU, GP WP(C) NO. 21087 OF 2023 3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 21087 OF 2023 4 T.R. RAVI, J. -------------------------------------------- W.P.(C)No.21087 of 2023 -------------------------------------------- Dated this the 29th day of May, 2024 JUDGMENT This writ petition has been filed with the following prayers. i. To issue a writ of mandamus directing the Respondent Nos. 2,3,4 and 8 to take into consideration the price hikes for the CNG in India, made by Respondent Nos. 5 to 7 and to take necessary actions to reduce the price considerably by taking into consideration the price in the international market and rate in which the 1st respondent and Respondent Nos.

5 to 7 are receiving the CNG per MMBtu, from the international market and provide the subsidized rate of CNG per kg to the consumer, considering the above said international market rate and thus regulate the rate of CNG per kg in a very lesser rate. ii. To issue a writ of mandamus directing the Respondent Nos. 1 to 4 and 8 to reduce the rate of tax applicable, imposed on CNG per kg and provide the same to the consumer after reducing the tax to a considerable lesser rate. iii. To issue a writ of mandamus directing the Respondent Nos. 2 and 8 to direct respondent Nos. 5 to 7 to regulate the rate of CNG provided to the WP(C) NO. 21087 OF 2023 5 consumers, according to the international market and considering the rate in which the 1st respondent and respondents Nos. 5 to 7 are receiving the CNG from the international market, per MMBtu and provide the same to the consumers on a rate per kg based on the international market rate as above said for the per MMBtu. iv.

To issue a writ of mandamus directing the Respondent Nos. 1.2.3.4. 8 and 9 to introduce tax subsidy and other subsidies applicable in all states, without any discrimination, including Kerala, considering the rate at the international market per MMBtu and the rate in which the 1st. 5 to 7 respondents are receiving the same. v. to dispense with the filing of translation of vernacular document vi. Issue such other appropriate writ, order or direction which this Hon'ble Court may deem fit in the circumstances of the case.

The petitioner, who is the owner of CNG fitted vehicles, contends that he is seriously affected by the lack of control over the price of CNG. It is submitted that when the petitioner purchased the vehicles, the price of the CNG was approximately Rs.48/- per kg and despite the fact that there has been fluctuating international market prices, the price of CNG in Kerala has increased compared to other States. The WP(C) NO. 21087 OF 2023 6 prayer is for exercising control over the prices and make CNG more affordable.

A statement has been filed on behalf of the 1st respondent wherein it has been stated that the Retail Selling Price for Compressed Natural Gas, is decided by the respective City Gas Distribution Entities and that the City Gas Distribution entities are authorised by Petroleum and Natural Gas Regulatory Board for development of City Gas Distribution network in the authorized geographical areas. It is stated that the Government does not have any control over the selling price of CNG.

Respondents 5 and 6 have filed counter affidavit. They are the City Gas Distribution entities as far as Kerala is concerned. The crux of the argument is that the issue involved is covered by the judgment of the Hon'ble Supreme Court in Petroleum and Natural Gas Regulatory Board v. Indraprastha Gas Ltd. [(2015) 9 SCC 209] wherein the Hon'ble Supreme Court has categorically held that the Petroleum and Natural Gas Regulatory Board does not have the power to regulate the maximum retail price of CNG sold WP(C) NO. 21087 OF 2023 7 by the respondents in the market. It is contended that there is no jurisdiction under Article 226 for protecting private businesses from risks associated with the business.

The High Court of Delhi had in Indraprastha Gas Ltd. v. Petroleum and Natural Gas Regulatory Board [2012 SCC Online Del 3215], considered a challenge made by the petitioner before the Court against the price regulation which is sought to be brought in by the PNGRB. In Paragraph 27 of the judgment it is specifically held that the PNGRB Act does not confer any power on the Board to fix/regulate price of gas as has been done in the impugned order dated 09.04.2012. The PNGRB took up the matter before the Hon'ble Supreme Court which resulted in the judgment reported in (2015) 9 SCC 209. The Hon'ble Supreme Court affirmed the judgment of the High Court and held that on scanning the entire Act and applying various principles the Court finds that the Act does not confer any power on the Board to fix tariff. The Court further held that the Court cannot frame a Regulation which will cover the area pertaining to determination of network tariff facility or WP(C) NO. 21087 OF 2023 8 local gas distribution network and compression charge for CNG. The Apex Court declared the entire regulation as ultra vires.