Indraprastha Gas Ltd. Vs Petroleum and Natural Gas Regulatory Board and Another

Rajiv Sahai Endlaw, J.@mdashThe petition impugns,

i) the order dated 9th April, 2012 of the respondent no. 1 Petroleum and Natural Gas Regulatory Board (hereinafter called "Board");

ii) the Petroleum and Natural Gas Regulatory Board (Determination of Network Tariff for City or Local Natural Gas Distribution Networks and Compression Charge for CNG) Regulations, 2008 (hereinafter called "Tariff Regulations");

iii) Regulation 17(5) of the Petroleum and Natural Gas Regulatory Board (Authorizing Entities to Lay, Build, Operate or Expand City or Local Natural Gas Distribution Networks) Regulations, 2008 (hereinafter called "Network Regulations");

iv) Regulation 7 of the Petroleum and Natural Gas Regulatory Board (Code of Practice for Quality of Service for City or Local Natural Gas Distribution Networks) Regulations, 2010 (hereinafter called "Quality Regulations");

v) Scheme for Consumer Welfare Fund 2011; and,

vi) alternatively in the event of the Board being held to have power to fix network tariff and compression charges, seeks direction for re-fixing thereof by following principles of natural justice. Notice of the petition was issued. Finding the petition to be entailing a pure question of law as to the power of the Board to fix the rates, as done by the impugned order dated 9th April, 2012, the learned ASG appearing for the respondents stated that no counter affidavit was required to be filed. Further, owing to the urgency expressed, the matter was immediately set down for final hearing. Liberty was also granted to the petitioner to avail the appellate remedy qua the quantum of the rates fixed by the Board. The counsels have been heard.

2. We may also notice that though the multifarious challenge to various provisions as aforesaid is made in the writ petition but the counsels, at the time of arguments, confined their submissions to the entitlement of the Board to fix the tariff, as done in the impugned order dated 9th April, 2012 and made their submissions qua the Act and the various Regulations in this context only. We are therefore proceeding to adjudicate the said aspect only.

3. The Board, vide the impugned order dated 9th April, 2012 issued in exercise of powers u/s 22 of the Petroleum and Natural Gas Regulatory Board Act, 2006 (PNGRB Act) and the Network Regulations has, a) determined the Network Tariff and Compression Charges for CNG in respect of Delhi City Gas Distribution (CGD) Network of the petitioner at Rs. 38.58 per MMBTU and Rs. 2.75 per KG respectively w.e.f. 1st April, 2008; b) directed the petitioner to recover the said Network Tariff and Compression Charges for CNG separately through an invoice, without any premium or discount on a non-discriminatory basis; c) directed the petitioner to appropriately reduce the selling price of CNG from the date of issuance of this order; and, d) left the modalities and time frame for refund of the differential Network Tariff and the Compression Charges for CNG recovered by the petitioner w.e.f. 1st April, 2008 in excess from its consumers to be decided subsequently.

4. The plea/contention of the petitioner is -

i) that it was established in the year 1998 to comply with the direction of the Supreme Court in M.C. Mehta v. Union of India [WP(C) No. 13029/1985)] for introduction of an alternative fuel in the form of CNG to mitigate pollution levels in the City of Delhi;

ii) that it is a Joint Venture Company of GAIL (India) Limited, Bharat Petroleum Corporation Ltd. and the Government of Delhi and has been authorized to supply, sell and distribute Compressed Natural Gas (CNG) for the Automobile Sector as well as Piped Natural Gas (PNG) to the domestic, commercial and industrial consumers in the cities of Delhi, Noida, Greater Noida, Ghaziabad;

iii) towards the said end, the petitioner speedily expanded its network by arranging gas, laying down and building a network of inter-connected pipelines spread all over the city and set up of CNG Station etc., all at a huge cost;

iv) that the petitioner was already operating the CGD Network under permission, allocation and authorization of the Central Government at the time of enactment of the PNGRB Act in the year 2006 and the said position was recognized by the PNGRB Act also;

v) the Board constituted under the PNGRB Act, on 19th March, 2008 notified the Petroleum and Natural Gas Regulatory Board (Exclusivity for City or Local Natural Gas Distribution Network) Regulations, 2008 (hereinafter called "Exclusivity Regulations") in exercise of its powers u/s 61 of the PNGRB Act;

vi) that the Board vide its letter dated 9th January, 2009, while recognizing the authorization granted to the petitioner by the Central Government, granted Exclusivity to the CGD Network of the petitioner for the National Capital Territory of Delhi, subject to the condition that the petitioner shall submit Network Tariff and Compression Charges for CNG as per the Tariff Regulations for the approval of the Board within 30 days thereof;

vii) that though it was the contention of the petitioner that the Board was not empowered to fix prices but the petitioner nevertheless submitted the Network Tariff to the Board;

viii) WP(C) No. 9022/2009 was filed by the petitioner in this Court challenging the action of the Board of initiating the process of granting authorization to others, by calling tenders for the city of Ghaziabad. The said writ petition was allowed by Division Bench of this Court vide judgment dated 21st January, 2010 reported as 170 (2010) DLT 80 holding that the Board did not have the power to grant authorization in the wake of non-notification of Section 16 of the PNGRB Act. The Board challenged the said judgment by filing SLP(C) 5408/2010 but during the pendency of the said SLP the respondent no. 2 Union of India on 12th July, 2010 notified Section 16 w.e.f. 15th July, 2010;

ix) that the Board on 1st September, 2010 in exercise of its powers u/s 61 of the PNGRB Act notified the Quality Regulations (supra) requiring the entities as the petitioner to, in the bills to be raised by them on the consumers inter alia state the Network Tariff and Compression Charges for CNG;

x) that the Supreme Court vide order dated 12th May, 2011 in the SLP (supra) permitted the Board to deal with the applications for authorization on the conditions mentioned therein;

xi) that upon the intent of the Board to fix tariff, that too from a retrospective date, becoming apparent to the petitioner, the petitioner objected thereto;

xii) that the Board has no power to fix and regulate Network Tariff and Compression Charges. Reliance is placed on :-

a) Ispat Industries Ltd. vs. Commissioner of Customs, Mumbai (2006) 12 SCC 583 laying down that in the case of conflict between the Act and the Rules, the Act is to prevail;

b) N.C. Dhoundial Vs. Union of India (UOI) and Others, Naraindas Indurkhya Vs. The State of Madhya Pradesh and Others, Chhotobhai Jethabhai Patel and Co. v. The Industrial Court, Chhotobhai Jethabhai Patel and Co. Vs. The Industrial Court, Maharashtra Nagpur Bench, Nagpur and Others, and P. Malaichami Vs. M. Andi Ambalam and Others, all laying down that bodies created under a Statute derive their power from the Statute and have no unlimited jurisdiction.

5. Since the challenge in the petition is to the power of the Board to direct the petitioner to, while charging its consumers, disclose the Network Tariff and the Compression Charges and to also fix the said Network Tariff and Compression Charges, we deem it appropriate to, before noticing the arguments urged by the senior counsel for the petitioner, record as to how the learned ASG appearing for the respondents has shown the source of or justified the said power.

6. The learned ASG has drawn our attention to:-

i) Regulations 3 and 4 of the Exclusivity Regulations making the same applicable to an entity as the petitioner and explaining the rationale for allowing such Exclusivity;

ii) the letter dated 9th January, 2009 of the Board to the petitioner granting exclusivity to the petitioner inter alia on the term/condition that the petitioner shall submit the Network Tariff and Compression Charges for CNG as per the Quality Regulations for approval of the Board;

iii) on the basis of the above, it is contended that the petitioner having accepted the said term as a condition for obtaining exclusivity is bound by a contractual obligation with the Board and is now estopped from challenging the power of the Board;

iv) attention is also invited to the letter dated 11th February, 2009 of the petitioner to the Board accepting the said power of the Board; v) attention is invited to letters dated 25th March, 2009 of the Board and 29th May, 2009 of the petitioner to justify contractual basis for the power of the Board to fix Network Tariff and Compression Charges. It is urged that the petitioner having dealt with the Board, so understanding the powers of the Board, cannot now be heard otherwise;

vi) attention is invited to "Introduction" and "Statement of Objects and Reasons" of the PNGRB Act to urge that the same was enacted to protect the interest of the consumers;

vii) it is similarly pointed out that Sections 2(i), (m), (w) of the PNGRB Act are all intended to ensure that the consumer is not exploited;

viii) particular attention is invited to Section 2(zn) of the Act defining the "transportation rate;

ix) on the basis of Section 11(e) it is contended that the Board is empowered to regulate inter alia the transportation rates;

x) the Rule making provision i.e. Section 61 is shown to be, without prejudice to the generality of the powers and thus not exhaustive; particular attention is invited to Section 61(2) clauses (n), (t), (za) to show that Board is empowered to make regulations qua transportation tariff and any other matter which is required to be or may be specified by Regulations or in respect of which provision is to be made by Regulations;

xi) it is contended that the writ petition nowhere shows as to how the Regulations made are inconsistent with the Act;

xii) it is argued that if it were to be held that the Board cannot control tariff, no purpose would be served in fixing the transportation cost which the petitioner also admits the Board to be empowered to;

xiii) it is argued that the Board is not fixing the retail price of CNG but is only fixing the transportation cost;

xiv) Reliance is placed on:-

a) PTC India Ltd. Vs. Central Electricity Regulatory Commission thr. Secy., dealing with the powers of the Appellate Tribunal constituted under the Electricity Act, 2003;

b) Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, to contend that in determining the constitutionality of the Regulations, the Court should only see whether the Regulations fall within the scope and ambit of the power conferred by the Statute on the delegatee, whether the Regulation is inconsistent with the provision of the parent Statute and whether the Regulation infringes any of the fundamental rights or other restrictions or limitation imposed by the Constitution;

c) M/s. Shri Sitaram Sugar Co. Ltd. and another Vs. Union of India and others, laying down that the action of a delegatee must reasonably relate to the purpose of the enabling legislation;

d) Pratap Chandra Mehta Vs. State Bar Council of M.P. and Others, to contend that the powers of the delegatee have to be construed keeping in mind the objects sought to be achieved by the Statute and the power to frame Rules has to be given a wider rather than a restrictive scope so as to render the legislative object achievable; that the legislature provides a general Rule making power to carry out the purpose of the Act and when such a power is given, the Rules framed therein if satisfy the functionality of the object of the enactment are valid.

xv) that the quantum of the Network Tariff and the Compression Charges fixed by the Board are not to be gone into these proceedings and, if the Board is found to be entitled to fix the same, are to be subject matter of appeal before the Appellate Authority already preferred by the appellant; and,

xvi) that keeping in view the objective of the PNGRB Act, the Regulations permitting the Board to fix the Network Tariff

and the Compression Charges and the action of the Board so fixing the Network Tariff and the Compression Charges cannot be interfered with.

7. The crux of the argument of the senior counsel for the petitioner is that the Act, vide Section 22 thereof empowers the Board to only fix the transportation tariff; that the transportation rate, as per Section 2(zn) is the rate to be charged either by a common carrier or a contract carrier of gas from a person engaged in marketing of gas, for moving the gas. It is argued that the Act no where empowers/authorizes the Board to fix the price to be charged by a marketeer of gas from its consumers. We therefore, without elaborating on the submissions in this regard, first intend to examine the provisions of the Act in this respect.

8. However before doing so, it is necessary to deal with the contention of the learned ASG that the impugned order dated 9th April, 2012 does not fix the retail price of gas and only fixes the Network Tariff inasmuch as if that were to be the position, the question would only be, whether the fixation of Network Tariff and Compression Charges to be charged by the petitioner from its consumers, does not affect the total price to be charged by the petitioner. In this regard it may be noted that the impugned order dated 9th April, 2012 itself requires the petitioner to reflect such Network Tariff and Compression Charges fixed by the Board "through appropriate reduction in selling prices" and defers the decision on modalities and time frame for refund of differential Network Tariff and Compression Charge for CNG for the period from 1st April, 2008 till the order dated 9th April, 2012. Had the order dated 9th April, 2012 impugned in this petition not been of fixation of retail price of gas to be charged by the petitioner from its consumers, mention of reduction in sale price and of refund by the petitioner of the Network Tariff and Compression Charge for CNG charged by the petitioner in excess of the rate so fixed by the Board would not have been made in the impugned order. The argument of the learned ASG that the Board by fixing the Network Tariff and the Compression Charges is not fixing the price to be charged by the petitioner from its consumers, thus cannot be accepted. The question for adjudication then is, whether the Act authorizes the Board to do so and whether the intent of the legislature was to confer a power of price fixation on the Board.

9. The Preamble to the PNGRB Act undoubtedly describes it as, to provide for the establishment of the Board to regulate inter alia marketing and sale of natural gas so as to protect the interests of consumers. Regulation of marketing and sale, would generally speaking, include regulation of price. This line of judgments and a discussion thereon can be found in U.P. Co-operative Cane Unions Federations Vs. West U.P. Sugar Mills Association and Others etc. etc., , holding the power of regulation to be all-encompassing. We may notice that the ratio of the said judgment has already been referred to a larger Bench vide West Uttar Pradesh Sugar Mills Association and Others etc. etc. Vs. State of Uttar Pradesh and Others etc. etc., . Similarly, price fixation is also generally towards protection of interest of consumers. Thus, from a reading of the Preamble to the Act, it definitely follows that the Board constituted thereunder is empowered to fix the price. However such an objective, reflected in the Preamble to the statute is not enough and a provision for price fixation has to exist in the body of the statute also. As is obvious from the arguments of the learned ASG as noted above, there is no specific provision of the PNGRB Act empowering the Board to control/regulate or fix the price at which gas is to be sold to the consumer and which power is being sought to be exercised by the Board. Section 11 of the PNGRB Act, while prescribing the functions which the Board is to perform, does not state, as it ought to have stated/prescribed, had the legislature intended the Board to perform the function of controlling/regulating/fixing the price of natural gas, to perform such function. What falls for determination is whether the power to control/regulate/determine price can be deduced from the functions as described in the following clauses of Section 11 of the Act and which alone can be said to have closest nexus if any to price regulation/fixation:-

11. Functions of the Board.- The Board shall-

(a). Protect the interest of consumers by fostering fair trade and competition amongst the entities;

(e). regulate, by regulations, -

(i) ..........

(ii) transportation rates for common carrier or contract carrier;

(iii) ..........

(f). in respect of notified petroleum, petroleum products and natural gas-

(i) ...........

(ii) ensure display of information about the maximum retail prices fixed by the entity for consumers at retail outlets;

(iii) monitor prices and take corrective measures to prevent restrictive trade practice by the entities;

(iv) ..........

(v) provide, by regulations, and enforce, retail service obligations for retail outlets and marketing service obligations for entities;

(vi) monitor transportation rates and take corrective action to prevent restrictive trade practice by the entities;

(j) perform such other functions as may be entrusted to it by the Central Government to carry out the provisions of this Act.

10. We are of the opinion that none of the aforesaid clauses can be construed as prescribing price control/regulation as a function of the Board. Clause (a) supra while prescribing protection of interest of consumers limits the same to, by fostering fair trade and competition amongst entities engaged in distributing, dealing, transporting, marketing gas. The function of the Board thereunder is of regulating the inter se relationship of entities under the Act and not to regulate/control the relationship between the entities under the Act and the consumers. Similarly, Clause (f) while prescribing function of monitoring prices limits the same to taking corrective measures to prevent restrictive trade practices by the entities. Thus only if the Board finds that the marketeers of gas in a particular area have formed a cartel or are indulging in any other restrictive trade practices, is the Board empowered to monitor prices. Such is not the case of the Board in the present instance. The petitioner even though till date the exclusive marketeer of gas in Delhi, has not been accused of any restrictive trade practice and the power exercised also is not in the name of monitoring price. Another sub-clause of clause (f) of Section 11 confers function on the Board to ensure display of information about Maximum Retail Price. Again, had the intent of the legislature been to confer the power on the Board to fix the Maximum Retail Price, nothing prevented the legislature from providing so expressly. Instead, functions of enforcing retail service obligations and marketing service obligations only have been conferred by the legislature. The definition of retail service obligations and marketing service obligations in Sections 2(zk) and (w) also do not include obligation to sell at the prices fixed by the Board.

11. That brings us to the question as to whether prices can be fixed/regulated/controlled and if so, how. Prices are generally governed regulated by market forces. Price fixation/regulation/control is essentially a clog on the freedom of trade and commerce conferred the status of a fundamental right. However wherever the circumstances so justify, the same has been treated as a reasonable restriction. However such restriction on fundamental right has to be by legislative mandate only. The Supreme Court recently in DLF Universal Ltd. v. Director, Town and Country Planning Department, Haryana (2010) 14 SCC 1, finding no provision in the statute (Haryana Development and Regulation of Urban Areas Act, 1975) empowering the Director to fix the sale price, held directions fixing the sale price to be beyond the limits laid down by the empowering Act and suffering from lack of power and void. It was observed that an order which is not within the powers given by the empowering Act, has no legal legs to stand on and is a nullity. It was further held that a power of imposing restrictions on profit percentages, time limit on construction and handing over of such construction does not encompass within itself the right to exercise power in manner that inhibits terms of contract and freedom granted therein. Similarly, in The Oil and Natural Gas Commission and another Vs. The Association of Natural Gas Consuming Industries of Gujarat and others, etc. etc., it was observed that price fixation is a legislative function. Even the seven Judge Bench of the Supreme Court in Prag Ice and Oil Mills and Another Vs. Union of India (UOI), had observed that unless by the terms of a particular statute, price fixation is made a quasi-judicial function, it is really legislative in character. The Supreme Court in Transmission Corporation of Andhra Pradesh Ltd. and Another Vs. Sai Renewable Power Pvt. Ltd. and Others etc. etc., also opined that fixation of tariff is a statutory function, to be performed by a statutory authority in furtherance of the provisions of the relevant laws; finding the Electricity Act, 2003 to be requiring the appropriate Commission to determine the tariff, it was held to be empowered to do so. In contrast, the Board with which we are concerned in the present case, as aforesaid is not found to have been assigned the function of fixing the Network Tariff or the Compression Charges as it has purported to do. The Supreme Court in U.P. Power Corporation Ltd. Vs. National Thermal Power Corporation Ltd. and Others, has held that regulatory provisions are required to be applied having regard to the nature, textual context and situational context of each statute.

12. Coming back to the PNGRB Act, Section 12 thereof while conferring jurisdiction on the Board to entertain complaints and of resolution of disputes also does not mention complaints of sale beyond any retail price as may be fixed by the Board, but only mentions contravention of display of retail price at retail outlets. Similarly, Section 46 of the Act while prescribing punishment for unauthorized activities does not deal with punishment if any for sale beyond the retail price fixed by the Board. Section 52 while prescribing the obligations of entities as the petitioner does not require them to sell gas at the prices fixed by the Board.

13. The aforesaid analysis of the PNGRB Act does not show the Board to have been conferred power to regulate the Maximum Retail Price of gas. In the absence of any provision to the said effect in the Act, the mention in the Preamble to the Act to regulation of marketing and sale of natural gas is to be necessarily read as without the power to fix the Maximum Retail Price. Price fixation being a restriction on fundamental right, such a power cannot be inferred by conjectures and has to be expressly conferred. As aforesaid no such power/function has been conferred on the Board and the learned ASG also during the arguments has struggled to dig out such a power in the Board by seeking to extrapolate different provisions of the Act.

14. The Supreme Court in D.L.F. Qutab Enclave Complex Educational Charitable Trust Vs. State of Haryana and Others, held that a regulatory Act must be construed having regard to the purpose it seeks to achieve and a statutory authority cannot ask for something which is not contemplated under the statute. The statute in that case relating to regulation of user of land was construed to be not imposing any limitation prohibiting transfer of land not affecting its user. It would thus be seen that the powers of regulation under a statute were held to be not unlimited and a right of regulation was held to be confined to the language of the statute and not all pervasive. The basic rule of interpretation of statutes that the Court shall not go beyond the statute unless it is absolutely necessary so to do and that purposive construction would be resorted to only when literal interpretation leads to manifest injustice or absurdity, was applied. In our view the principle applied therein holds good in the facts of the present case also. Merely because the Board has been conferred with regulatory powers will not be interpreted to empower the Board to exercise powers which the statute has not conferred on it.

15. The House of Lords as far back as in Rossi v. Edinburgh Corporation [1905] A.C. 21 held that provisions in restraint of trade ought not to be interpreted as by implication extending the restrictions in restraint of trade further than the legislature has sanctioned. To the same effect is the dicta of the Supreme Court in Tata Power Company Ltd. and Another Vs. Reliance Energy Ltd. and Others, where it was held that save and except for the exercise of regulatory power which is specifically recognized by the statute, it is not open to the regulatory body (Electricity Regulatory Commission in that case) to exercise a power which is not incorporated in the statute.

16. We are also of the view that in the absence of any provision to the said effect in the Act, such a power cannot be inferred from the rule making power or by referring to the omnibus rule making power. It is also worth mentioning that there is no indication whatsoever in the Act as to the factors which are to govern such price fixation.

17. As far as the reliance by the learned ASG on Section 61(2)(za) is concerned, we are of the view that in the absence of any such power in the Board under the Act, no such power can be conferred by the Board on itself under the guise of making regulations. The Supreme Court recently in Academy of Nutrition Improvement and Others Vs. Union of India (UOI), eiterated that conferment of rule making power by an Act does not enable the rule making authority to make a rule which travels beyond the scope of the enabling Act.

18. That brings us to transportation rate/transportation tariff which undoubtedly finds mention in the Act and to the question whether the Network Tariff and the Compression Charges fixed by the respondent are within the ambit of the said transportation rate. Section 2(zn) of the Act defines "transportation rate" as:-

transportation rate", in relation to common carrier or contract carrier or a city or local natural gas distribution network, means such rate for moving each unit of petroleum, petroleum products or natural gas as may be fixed by regulations.

Section 22 titled "Transportation Tariff" is as under:-

22. Transportation tariff.-(1) Subject to the provisions of this Act, the Board shall lay down, by regulations, the transportation tariffs for common carriers or contract carriers or city or local natural gas distribution network and the manner of determining such tariffs.

(2) For the purposes of sub-section (1), the Board shall be guided by the following, namely:-

(a) the factors which may encourage competition, efficiency, economic use of the resources, good performance and optimum investments;

(b) safeguard the consumer interest and at the same time recovery of cost of transportation in a reasonable manner;

(c) the principles rewarding efficiency in performance;

(d) the connected infrastructure such as compressors, pumps, metering units, storage and the like connected to the common carriers or contract carriers;

(e) bench-marking against a reference tariff calculated based on cost of service, internal rate of return, net present value or alternate mode of transport;

(f) policy of the Central Government applicable to common carrier, contract carrier and city or local distribution natural gas network.

19. The contention of the senior counsel for the petitioner is that the said transportation rate/transportation tariff is the rate/tariff which the entity which has an inter-connected network of gas pipelines and associated equipment used for transporting natural gas from a bulk supply high pressure transmission main to the medium pressure distribution grid and subsequently to the service pipes supplying natural gas to domestic, industrial or commercial premises and CNG stations is entitled to charge from the marketeers of gas. It is urged that the Act contemplates an entity engaged only in laying down and maintaining such network alone without being a marketeer of gas and which entity has been described as a contract carrier. It is further urged that the Act also contemplates a marketeer of gas which has laid down its own network of gas pipelines and the associated equipment as the petitioner has done and empowers the Board to compel such an entity, as the petitioner to, in its own distribution network carry/move the gas of other marketeers also. The senior counsel for the petitioner contends that though the petitioner at present is the only marketeer of gas with exclusivity rights, in future upon other marketeers coming in the fray, can be compelled by the Board to in its own network, also carry/move the gas of such other marketeers. It is contended that the transportation rate/transportation tariff referred to in the Act is the rate/tariff which such common carrier or a marketeer with own distribution network is to charge from other marketeers of gas. The argument is that the transportation rate/transportation tariff mentioned in the Act is the rate/tariff charged by one entity under the Act from another and not the rate/tariff which the marketeer of gas under the Act is to charge from the consumers.

20. As noticed above, while Section 2(zn) uses the expression transportation rate, Section 22 uses the expression transportation tariff. It was as such enquired from the senior counsel for the petitioner whether there is any difference between rate and tariff. The senior counsel for the petitioner has answered the said query by inviting attention to Transmission Corporation of Andhra Pradesh Ltd. (supra) which describes tariff as a table or a book or a catalogue of rates. It is further contended that there is no difference between the two. We may however notice that PTC India Ltd. (supra) also defines tariff as including within its ambit fixation of rates.

21. In so far as the contention of the learned ASG of the petitioner, irrespective of the PNGRB Act, being contractually bound to be governed by the rates/tariff prescribed by the Board is concerned, the senior counsel for the petitioner has referred us to Shree Vindhya Paper Mills Ltd. Vs. Union of India and Others, where it was observed that "law is not determined by conduct of the parties or by their view of it". We even otherwise are of the opinion that if the Board is not found to be empowered