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whether the denial of access to common carrier capacity on reasonable endeavor basis to the two pipelines laid by the appellant to the second respondent, is discreminatory and amounting to Restrictive Trade Practices or not.= we find that the the following crucial aspect has not been considered either by the Board or by the Appellate Authority. The main arguments of the learned counsel for the respondents rests on the application of the Petroleum and Natural Gas Regulatory Board (Affiliate Code of Conduct for Entities Engaged in Marketing of Natural Gas and Laying, Building, Operating or Expanding Natural Gas Pipeline) Reglations, 2008 and without addressing this issue, the dispute as raised in the complaint cannot be resolved.= Issue - To what extent, the Petroleum and Natural Gas Regulatory Board (Affiliate Code of Conduct for Entities Engaged in Marketing of Natural Gas and Laying, Building, Operating or Expanding Natural Gas Pipeline) Reglations, 2008 are applicable to the complainant. 12. While addressing this issue, the interplay between the scheme as per the Act and the regulations will also be addressed. 13. We find that the pleadings by both the parties have not been satisfactory before the original authority. Therefore, as requested by the learned senior counsel appearing for both the sides, we permit both sides to file additional pleadings before the Board. The complainant may file its additional pleadings within two weeks from today and the appellant will file its reply within two weeks thereafter. Based on the additional pleadings, we make it clear, it will be open to the Board to raise additional issues, if required.Having regard to the fact that the original complaint was filed in the year 2013, we direct the Board to dispose of the complaint within six months from today. We also grant liberty to the complainant, if so required, to make an application before the Board for an appropriate interim order after completion of the pleadings and in which case, the Board may dispose of the application within three months. 15. In that view of the matter, we set aside the impugned order passed by the Appellate Authority dated 28.11.2014 in Appeal No. 52 of 2014 as also the original order passed by the Board dated 26.12.2013 in Case No. 68 of 2013.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                       CIVIL APPEAL NO. 11450 OF 2014


      GAIL (INDIA) LTD.                         Appellant(s)

                                VERSUS

      PETROLEUM AND NATURAL GAS REGULATORY
      BOARD & ORS.                                   Respondent(s)



                               J U D G M E N T

KURIAN, J.

1.    The main issue raised in this appeal is whether the denial  of  access
to  common  carrier  capacity  on  reasonable  endeavor  basis  to  the  two
pipelines laid by the appellant to the second respondent, is  discreminatory
and amounting to Restrictive Trade Practices or not.  In the nature  of  the
order we are required to pass in this case,  it  is  unnecessary  to  go  in
detail to the factual matrix.

2.    The issue arises under the Petroleum and Natural Gas Regulatory  Board
(Authorising  entities  to  lay,  build,  operate  or  expand  natural   gas
pipeline) Regulations, 2008 and Petroleum and Natural Gas  Regulatory  Board
(Guiding Principles for Declaring or Authorising  Natural  Gas  Pipeline  as
Common Carrier or Contract Carrier) Regulations, 2009.

3.    In terms of the Regulations, the  appellant  published  the  available
common carrier capacity for the prospective contracting by any third  party.


4.    On 19.11.2012, the appellant published an Expression of  Interest  for
booking capacity by intrested parties mentioning  therein  that  the  common
carrier capacity thus available is on Ship or Pay basis.

5.    Respondent No. 2, on 04.05.2013, expressed its  desire  to  avail  the
common carrier capacity on reasonable endeavour basis.

6.    Failing to resolve the disputes between ship  or  pay  and  reasonable
endeavour basis, Respondent No.2 filed a complaint before the Petroleum  and
Natural Gas Regulatory Board (in short, "the Board") on 21.09.2013.

7.    The Board, after elaborate discussions,  allowed  the  complaint.   We
shall extract the relevant portion as under :-
" .........
52. The respondent's explanation  does  not  deserve  any  acceptability  or
credibility at all because the  common  carrier  capacity  has  to  be  non-
discriminatory reserved on 'first-cum-first-serve' basis without making  any
specific classification for reservation of common carrier capacity.
53.   The practice adopted  by  the  respondent  on  the  one  hand  reveals
discrimination towards the customer like complainant and on the other  hand,
results in additional burden for the shippers who are not  the  regular  and
long  standing  customers  of  the  respondent  and  such   practices   also
discourage fair competition in the market.
54.   In view of above, it would not be appropriate for  us  to  direct  the
respondent for booking  common  carrier  capacity  on  reasonable  endeavour
basis but we hold that the practice being adopted by the  respondent,  while
booking common  carrier  capacity,  is  not  only  discriminatory,  it  also
amounts to restrictive trade practice and must follow the consequence  under
Section 28 in the light of  the  provision  of  Section  11  (a)  read  with
Section 12(1)(b)(v) of the Petroleum &  Natural Gas Regulatory Board Act.
55.   On giving careful consideration to all the  facts  and  circumstances,
we hereby direct the respondent to immediately cease its  restrictive  trade
practice of preventing the shippers like complainant, the access  of  common
carrier capacity in its  common  carrier  pipeline  and  also  impose  civil
penalty of Rs. 1.00 lac under Section 28 of  the  PNGRB  Act,  2006,  to  be
deposited within a month from today."

8.    Aggrieved, the appellant took  up  the  matter  before  the  Appellate
Tribunal for Electricity (in short, "Appellate Authority"), leading  to  the
impugned order dated 28.11.2014, by which the Appellate Authority  dismissed
the appeal in the following terms :-
"On giving careful consideration to  the  facts  and  circumstances  of  the
Appeal, including the pleadings and submissions made by the parties, we  are
of the opinion that it has been  established  that  the  Appellant,  in  the
instant case, while booking common carrier capacity  in  its  pipeline,  has
acted in a discriminatory manner leading to restrictive trade practices  and
as such, the Appellant is liable to pay the penalty of Rs.  1  lakh  to  the
Board.  Thus, the Impugned Order is upheld.   Consequently,  the  Appeal  is
hereby dismissed"

9.    Feeling aggrieved by  the  impugned  order  passed  by  the  Appellate
Authority, the appellant has preferred this appeal before us.

10.   Though the parties have taken elaborate contentions  both  before  the
Board as well as before the Appellate Authority,  having  extensively  heard
Mr.Tushar Mehta, learned Additional  Solicitor  General  appearing  for  the
appellant and Mr. Parag Tripathi, learned senior counsel appearing  for  the
second respondent, we find that the the following  crucial  aspect  has  not
been considered either by the Board or by the Appellate Authority. The  main
arguments  of  the  learned  counsel  for  the  respondents  rests  on   the
application of the Petroleum and Natural  Gas  Regulatory  Board  (Affiliate
Code of Conduct for  Entities  Engaged  in  Marketing  of  Natural  Gas  and
Laying, Building, Operating or Expanding Natural Gas  Pipeline)  Reglations,
2008 and without addressing  this  issue,  the  dispute  as  raised  in  the
complaint cannot be resolved.

11.   In the facts and circumstances of the case, we are of  the  view  that
unless the issue, which is formulated below,  is  addressed,  the  complaint
filed by the second  respondent  before  the  Board  should  not  have  been
disposed of.  Therefore, we propose to frame the following  issue  and  send
the matter back to the Board :-

Issue - To what extent, the  Petroleum  and  Natural  Gas  Regulatory  Board
(Affiliate Code of Conduct for Entities Engaged in Marketing of Natural  Gas
and  Laying,  Building,  Operating  or  Expanding  Natural   Gas   Pipeline)
Reglations, 2008 are applicable to the complainant.



12.   While addressing this issue, the interplay between the scheme  as  per
the Act and the regulations will also be addressed.

13.   We find  that  the  pleadings  by  both  the  parties  have  not  been
satisfactory before the original authority.  Therefore, as requested by  the
learned senior counsel appearing for both the sides, we  permit  both  sides
to file additional pleadings before the Board. The complainant may file  its
additional pleadings within two weeks from  today  and  the  appellant  will
file its reply  within  two  weeks  thereafter.   Based  on  the  additional
pleadings, we make it  clear,  it  will  be  open  to  the  Board  to  raise
additional issues, if required.

14.   Having regard to the fact that the original  complaint  was  filed  in
the year 2013, we direct the Board to dispose of the  complaint  within  six
months from today.   We  also  grant  liberty  to  the  complainant,  if  so
required, to make  an  application  before  the  Board  for  an  appropriate
interim order after completion of the  pleadings  and  in  which  case,  the
Board may dispose of the application within three months.

15.   In that view of the matter, we set aside the impugned order passed  by
the Appellate Authority dated 28.11.2014 in Appeal No. 52 of  2014  as  also
the original order passed by the Board dated 26.12.2013 in Case  No.  68  of
2013.

16.   We make it clear that we have not expressed any opinion on the  merits
of the case and it will be open to both the parties to raise  all  available
contentions before the Board at any stage.

17. With  the  above  observations  and  directions,  the  Civil  Appeal  is
disposed of with no order as to costs.

                                                   .......................J.
                                                           [ KURIAN JOSEPH ]


                                                   .......................J.
                                                   [ ROHINTON FALI NARIMAN ]

      New Delhi;
      January 13, 2016.

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