S.P. Talukdar, J. - (1.) This relates to an appeal against the judgment and Order dated October 4, 2004 passed by the Hon'ble Single Bench in W.P. No. 16166 (W) of 2004. Grievances of the Appellants, as ventilated, may briefly be stated as follows: Appellants, as Petitioners, by filing an application before the Hon'ble Court challenged order dated June 9, 2004 issued by the West Bengal State Electricity Regulatory Commission and prayed for issuance of a writ in the form of mandamus directing the West Bengal State Electricity Board to continue to allow the concessions at the rate specified in the letter dated June 30, 2003 to the industrial units of the Petitioners during the year 2004 -05 and 2005 -06. The Petitioners also prayed for injunction restraining the Respondents from giving effect to the said order dated June 9, 2004 and from withdrawing the concession granted under the West Bengal Incentive Scheme, 1999 and from realising and/or charging the Petitioners at the new rates in terms of the said order or to reject the same in any manner whatsoever. They also sought for order restraining the Board from disconnecting the electricity supply to the factories of the Petitioners No. 1,4, 5 and 6. Petitioners claim was opposed by the Respondent, West Bengal State Electeicity Board as well as others. Learned Judge after due consideration of all relevant aspects by the impugned order dated October 04, 2004 refused to grant any interim relief and directed the Petitioners to pay the bills raised by the said Board on the undertaking given to the Board to refund and/or adjust any excess payment, if so directed by the Court.
(2.) Mr. Ajit Panja, learned Counsel appearing for the Appellants submitted that the Learned Judge failed to appreciate the matter in its proper perspective. Inviting attention of the Court to the preamble of the Electricity Act, 2003 hereinafter referred to as 'the Act', he submitted that 'protection of interest of consumers' finds special mention and this was not so earlier. True, preamble plays quite a significant role in interpretation of a statute. Where words of a statute are capable of either of the construction offered by the parties, the construction which fits the preamble may be preferred but when words of statute admit of only one construction, that will receive effect even if it is inconsistent to the preamble. Ref. : House of Lords in Attorney General v/s. H.R.H. Prince Ernest Augustus of Hanover, (1957) A.C. 436. He then drew attention of the Court to Ss. 110, 111, 112 and 113 of the Act as well as other provisions of Part -XI. According to him, in spite of due service of notice and earlier directions of the Court, the Respondents being Union of India and the State of West Bengal, could not claim that any Appellate Tribunal has been established. In fact, it is the admitted position that no such Tribunal has been set up so far in the State of West Bengal Quite strange, indeed. Mr. Panja submitted that preferring an appeal against an order of Commission Respondent No. 1, being a vested right, nonexistence of an appellate forum has virtually frustrated the entire scheme and object of the Act, which is, thus, unworkable. Going a step further, he submitted that such a vital point was raised but even after having been recorded, it was not dealt with by the Learned Judge and thus, according to him, makes the impugned order suffer from perversity. To this, learned Counsel for the various Respondents replied that where do the Appellants go if the entire act is thrown out? Mr. Aninda Mitra, learned Counsel for the Board submitted that an interpretation which virtually brings anarchy should be avoided.
(3.) We apreciate the anxiety of Mr. Ajit Panja in this regard. True, when conferred by statute, right of appeal becomes a vested right Ref.: : (2003)6 S.C.C. 659 : (2003) 6 S.C.C. 659. Inordinate delay in establishment of Tribunal reflects painful indifference, if not wilful negligence, on the part of the authorities. But non -existence of an appellate forum for a temporary period which may also due to some teething problems, cannot make the entire Act unworkable. In fact, Appellants have also brought themselves under the umbrella of such Act. Moreover, in absence of an existing alternative statutory remedy, the doors of writ Court are wide open for the Appellants and none has challenged the writ application on the ground of maintainability. It may be mentioned that we are not unmindful to the Apex Court decision in the case of State of Sikkim v/s. Dorje Tshering Bhutia : A.I.R. 1991 S.C. 1933 as referred to by Mr. Panja. But in the facts and circumstances of the present case we do not think hat the entire Act is not operational in view of non -existence of the Appellant Tribunal at this stage. Moreover, it was submitted on behalf of the Respondents that if the Act was unworkable, why did the Appellants choose to partiipate? In fact, the argument that in absence of appellate Tribunal the tariff order is still born was not taken as a plea in the application.;