High Court of KeralaSingle JudgeWrit petition dismissed; petitioner granted lib...

Bibin T. Alapatt v. Union of India and Others

Case / Petition Number:WP(C) No. 21087 of 2023

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • T. R. Ravi, J.
Judgment Date
2024-05-29
Court Decision / Holding
Writ petition dismissed. Most reliefs cannot be granted as PNGRB cannot regulate price under the PNGRB Act, and price control is not a judicially enforceable mandate. The court leaves liberty to petitioner to approach the government for subsidisation of CNG prices; the petition is dismissed with the caveat that subsidy relief may be pursued through governmental channels.
Final Disposition
Writ petition dismissed; petitioner granted liberty to pursue government subsidies; other reliefs denied.

Parties to the Case

Appellants / Petitioners

  • Bibin T. Alapatt

Respondents

  • The Union of India
  • The Chairman, Oil and Gas Pricing Regulatory Authority
  • The Principal Secretary Transport Department, Government Secretariat, Thiruvananthapuram
  • The Principal Secretary, Finance and Taxes Department, Government Secretariat, Thiruvananthapuram
  • The Managing Director, AG&P Pratham
  • The Managing Director, AGP CGD India Private Limited
  • The Branch Manager, Indian Oil - Adani Gas Pvt Ltd, Ernakulam
  • The Principal Secretary Finance and Taxes Department, Kerala
  • The Chief Secretary, State of Kerala
  • Addl. R10, Competition Commission of India (represented by its Chairman)

Legal Representation & Advocates

Counsels for Petitioners

  • • Anoop V. Nair
  • • Avantika R. Tanoosha Paul

Counsels for Respondents

  • • Sri Joseph KodIANTHARA (Sr.)
  • • Sri Jagadeesh Lakshman
  • • CGC Maaroof Kumar
  • • A P Anil Kumar
  • • G Mini
  • • P S Sree Prasad Mathew
  • • A Kuzhalandan KuriaKose
  • • Vargheese
  • • V. Shyamohan George
  • • J Nalappat
  • • Sradhaxna Mudrika
  • • Sri P. S. Appu (GP)

Case Synopsis & Summary

This writ petition challenges CNG pricing in Kerala and seeks executive intervention to make CNG more affordable for consumers. The petitioner, Bibin T. Alapatt, owner of CNG-fitted vehicles, contends that price volatility and insufficient state control have driven up CNG costs in Kerala relative to other states. He prays for mandamus to direct Respondents 2 (PNGRB) and the state authorities to consider international price benchmarks (per MMBtu) and regulate the price per kilogram for consumers at a substantially lower level, taking into account international market rates and the pricing received by the first respondent and Respondents 5–7. He also seeks a writ directing reduction of tax on CNG per kg and calls for subsidies or other subsidies available across states, asserting that price subsidy is a policy matter for government action. The petitioner further seeks dispensation of translation requirements and other reliefs deemed fit. The respondents submit that retail CNG pricing is fixed by City Gas Distribution entities under PNGRB authorization, and that the government does not directly control CNG prices. They rely on Supreme Court authority in Petroleum and Natural Gas Regulatory Board v. Indraprastha Gas Ltd. (2015) and a Delhi High Court decision (2012) to argue that PNGRB has no power to fix tariffs. The High Court ultimately finds that most reliefs cannot be granted; it dismisses the petition but leaves a liberty for the petitioner to pursue government subsidies, noting that subsidies would be a governmental policy matter.

Provisions of Law Cited

Petroleum and Natural Gas Regulatory Board Act, 2006Constitution of India, Article 226

Legal Doctrines & Maxims

  • Ultra vires

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that volatility in international CNG pricing and absence of adequate regulatory controls in Kerala warrant judicial intervention. He asserts PNGRB lacks authority to fix or regulate maximum CNG tariffs, and that government subsidies or price subsidies may be necessary to keep CNG affordable. He relies on the Supreme Court’s view that PNGRB cannot unilaterally set tariffs and contends the court should direct price adjustments based on international benchmarks, with consideration of tax reductions and subsidies to safeguard the consumer. The petitioner also asks for regulatory consideration of pricing per MMBtu to be translated into per kg for consumers, aligned with international rates where possible, and seeks potential subsidy mechanisms. respondents: The respondents maintain that CNG pricing is determined by City Gas Distribution entities under PNGRB authorization and that the government does not have direct control over retail pricing. They invoke the PNGRB Act’s lack of power to fix price, referencing the Supreme Court’s Indraprastha Gas Ltd. decision (2015) and a Delhi High Court ruling (2012) to justify dismissal of price-regulation reliefs. They argue that most reliefs cannot be granted, and that subsidy requests are policy concerns for government action; the court should dismiss the petition except for possible subsidy avenues.

Contentions of Respondents

The respondents contend that the pricing of CNG is determined by City Gas Distribution entities with PNGRB oversight, and the government has no direct control over retail prices. They rely on the Supreme Court decision in Petroleum and Natural Gas Regulatory Board v. Indraprastha Gas Ltd. (2015) and the Delhi High Court’s 2012 decision to argue PNGRB Act does not confer power to fix tariffs and that Article 226 cannot compel private businesses to bear market risks. They urge dismissal of the petition, noting that only subsidy avenues remain viable and must be pursued by the government. The court is urged to refrain from prescribing price caps and to respect the statutory framework and public policy choices.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Petroleum and Natural Gas Regulatory Board v. Indraprastha Gas Ltd.(2015) 9 SCC 209PositiveSupreme Court held that PNGRB does not have power to fix maximum retail price for CNG, establishing the controlling standard cited by the Kerala High Court.
Indraprastha Gas Ltd. v. PNGRB[2012 SCC Online Del 3215]Mentioned OnlyDelhi High Court held PNGRB Act does not confer power to fix/regulate price; cited as a precursor leading to the 2015 Supreme Court decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946** **WP(C) NO. 21087 OF 2023** ## **PETITIONER:** **BIBIN .T. ALAPATT AGED 42 YEARS ALAPATT HOUSE, PURANGATTUKKARA P.O, THRISSUR DISTRICT, PIN - 680051** **BY ADVS. ANOOP.V.NAIR AVANTHIKA R. TANOOSHA PAUL** ## **RESPONDENTS:** - **1 THE UNION OF INDIA REPRESENTED BY ITS PRINCIPAL SECRETARY, FINANCE AND TAXES DEPARTMENT, 3RD FLOOR, JEEVAN DEEP BUILDING, SANSAD MARG, JANPATH, CONNAUGHT PLACE, NEW DELHI, PIN - 110001** - **2 THE CHAIRMAN OIL AND GAS PRICING REGULATORY AUTHORITY, MINISTRY OF PETROLEUM & NATURAL GAS, SHASTRI BHAVAN, NEW DELHI, PIN - 110001** - **3 THE PRINCIPAL SECRETARY TRANSPORT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANTHAPURAM, PIN - 695001** - **4 THE PRINCIPAL SECRETARY, FINANCE AND TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANATHAPURAM, PIN - 695001** - **5 THE MANAGING DIRECTOR AG&P PRATHAM, WORLD MARK 2, AG&P OFFICE NO.305, ASSET -8, NH-8, AERO CITY, NEW DELHI, PIN – 110037** **WP(C) NO. 21087 OF 2023 2** **6 THE MANAGING DIRECTOR AGP CGD INDIA PRIVATE LIMITED, UNIT NO.305, 3RD FLOOR, WORLD MARK 2, ASSET -8, HOSPITALITY DISTRICT, AERO CITY, NH -8, NEW DELHI, PIN - 110037** - **7 THE BRANCH MANAGER INDIAN OIL - ADANI GAS PVT LTD, ANDRAYAN ARCADE, 4TH FLOOR, II/309E, OPP LEGACY HOTEL, KUNDANOOR, MARADU, ERNAKULAM, PIN - 682034** **8 THE PRINCIPAL SECRETARY FINANCE AND TAX DEPARTMENT, ROOM NO. 131, IIND FLOOR, NORTH BLOCK, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **9 THE CHIEF SECRETARY STATE OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** **ADDL.R10 THE COMPETITION COMMISSION OF INDIA 9TH FLOOR, BLOCK-1, EAST KIDWAI NAGAR, NEW DELHI110023 REPRESENTED BY ITS CHAIRMAN** *** IS IMPLEADED AS ADDITIONAL R10 AS PER THE ORDER DATED 29.05.2024 IN I.A.No.1 OF 2023 IN W.P(C).No.21087 OF 2023** **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 29[th] 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. 2. 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. 3. 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. 4. 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. 5. 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. In view of the judgment of the Hon'ble Supreme Court, most of the reliefs that have been prayed for in the writ petition cannot be granted. The only exception may be the prayer for subsidising the price of CNG which is a matter which the petitioner will have to take up before the respective Governments at the first instance before approaching the Court. Leaving liberty to the petitioner to approach the Government for subsidisation of the prices, this writ petition is dismissed. Sd/- **T.R.RAVI JUDGE** LEK ## **WP(C) NO. 21087 OF 2023 9** ## **APPENDIX OF WP(C) 21087/2023** ## **PETITIONER EXHIBITS** **Exhibit P1** - **TRUE COPY OF THE RC BOOK OF THE VEHICLE NO. KL08BY5450 ISSUED BY THE MOTOR VEHICLES DEPARTMENT, DATED 28.06.2022 TO THE PETITIONER** **Exhibit P1(a) TRUE COPY OF THE RC BOOK OF THE VEHICLE NO. KL08BA0106 ISSUED BY THE MOTOR VEHICLES DEPARTMENT, DATED 06.01.2022 TO THE PETITIONER** - **Exhibit P2 TRUE PHOTO COPY OF THE GRAPH SHOWING CNG VEHICLES SALES INCREASING IN WORLDWIDE** **Exhibit P3 TRUE COPY JUDGMENT IN WRIT PETITION (CIVIL) 13029 OF 1985, DATED 05.04.2022 PASSED BY THE SUPREME COURT OF INDIA** - **Exhibit P4 TRUE PHOTO COPY OF THE SALES GRAPH SHOWING CNG POWERED VEHICLE SALES IN INDIA** - **Exhibit P5 TRUE PHOTO COPY OF THE PRICE RISE** - **Exhibit P6 TRUE PHOTO COPY OF THE GRAPH SHOWING THE SUDDEN DECLINE IN THE INTERNATIONAL PRICE** - **Exhibit P7 TRUE PHOTO COPY OF THE PRICE STRUCTURE IN DIFFERENT STATES** - **EXHIBIT P8 TRUE COPY OF THE GRAPHS SHOWING THE LATEST INTERNATIONAL MARKET FOR NATURAL GAS PER MMBtu** - **EXHIBIT P9 TRUE COPY OF THE DIFFERENCE IN RATES FOR CNG IN DIFFERENT STATES OF INDIA** - **EXHIBIT P10 TRUE COPY OF THE PAPER PUBLICATION SHOWING THE RISE IN PRICE OF THE CNG IN INDIA** ## **WP(C) NO. 21087 OF 2023 10** **EXHIBIT P11 TRUE COPY OF THE NOTIFICATION DATED 30.09.2022 ISSUED BY MINISTRY OF PETROLEUM AND NATURAL GAS EXHIBIT P12 TRUE COPY OF THE NOTIFICATION DATED 30.04.2023 ISSUED BY MINISTRY OF PETROLEUM AND NATURAL GAS EXHIBIT P13 TRUE COPY OF THE NOTIFICATION DATED 31.12.2023 ISSUED BY MINISTRY OF PETROLEUM AND NATURAL GAS** **RESPONDENTS EXHIBITS ANNEXURE-R5(a) TRUE COPY OF THE OF THE GRANT OF AUTHORISATION DATED 29.03.2019 ISSUED BY PETROLEUM AND NATURAL GAS REGULATORY BOARD. ANNEXURE-R5(b) TRUE COPY OF TRANSFER OF AUTHORISATION DATED 01.09.2020 ISSUED BY PETROLEUM AND NATURAL GAS REGULATORY BOARD**