B. SUBHASHAN REDDY, C.J.

At issue, is the constitutionality of revision of power tariff by the State of Tamil Nadu. Tamil Nadu Electricity Board prepares budget estimates every year and they are placed before the State Legislature. For the year 2001-2002 too, such Budget estimate was prepared and was placed before the State Legislature. The revenue gap, after compiling, between the receipts and expenditure, was arrived at Rs. 2,747. 59 crores. Responding to the same, the Government had issued G. O. Ms. No. 95, dated 28-11-2001 revising power tariff but on representation being made, the escalation in power tariff was slightly reduced by later G. O. Ms. No. 96, dated 5-1-2001, making the said modification applicable only to domestic consumers. G. O. Ms. No. 95 became effective from 1-12-2001 as modified by G. O. Ms. No. 96. The above three writ petitions are pro bono publico. First in order W. P. No. 23807 of 2001 followed by W. P. Nos. 25219 and 25220 of 2001. While the power to enhance the power tariff is in question in W. P. Nos. 23807 and 25219 of 2001, the relief sought for in W. P. No. 25220 of 2001 is quite different, as, in the said writ petition, a mandamus is sought for to direct the first respondent-Government to convene the Selection Committee to select and appoint the Chairperson and the Members of the Tamil Nadu State Electricity Regulatory Commission. Though in the first writ petition, the challenge initially was to G. O. Ms. No. 95, an amendment was sought to challenge G. O. Ms. No. 96 and the said amendment petition was allowed.

( 2 ) MR. K. M. Vijayan, learned senior counsel, appeared for the petitioner in W. P. No. 23807 of 2001 while Mr. Sriram Panchu, learned senior counsel, appeared for the petitioners in other petitions viz. , W. P. Nos. 25219 and 25220 of 2001. The State was defended by Mr. R. Muthukumaraswamy, learned Additional Advocate General. Mr. K. S. Natarajan, learned counsel, appeared for the State Regulatory Commission. Mr. Vasudevan, learned counsel, appeared for the Tamil Nadu Electricity Board.

( 3 ) IN first two writ petitions, the questions raised are not only regarding the power of the State Government to revise power tariff but also regarding the quantum of escalation, as being arbitrary and unreasonable. But during the arguments, both M/s. K. M. Vijayan and Sriram Panchu, learned senior counsel, gave up the issue relating to the quantum of escalation of power tariff and confined their arguments on the power and jurisdiction of the State Government in revising power tariff. The learned senior counsel submit that after the enactment of Electricity Regulatory Commissions Act, 1998 by the Parliament, the State Government ceased to have any role in the matter of revision of tariff for the user of electrical energy and that the said power is vested only with State Electricity Regulatory Commission and as such, the impugned Governmental orders are non est in law and the power tariff revision ordered therein, is unenforceable.

( 4 ) MR. K. S. Natarajan, learned counsel appearing for the Tamil Nadu State Electricity Regulatory Commission, supports the said argument and submits that the Commission came into force and had been functional ever since July, 1999 and that the impugned Governmental Orders G. O. Ms. Nos. 95 and 96 are fit to be struck down.

( 5 ) COUNTERING the said arguments, Mr. R. Muthukumaraswamy, learned Additional Advocate General, appearing for the State of Tamil Nadu, submits that even though the Parliament had enacted Central Act 14 of 1998, providing for the Constitution of both Central and State Regulatory Commissions, the State Electricity Regulatory Commission did not come into force and had been non-functional, and as there was huge revenue deficit, as is evident from the statement submitted by the Tamil Nadu Electricity Board, it was imperative on the part of the State Government to effect the revision without further loss of time, as, making the Commission functional would entail in further delay and that the State Government was of the considered view that any further delay would affect the public interest because of the depletion of essential revenue source. The learned Additional Advocate General also submits that there is no repugnancy in the action of the State Government as the repugnancy arises only when the State Electricity Regulatory Commission starts discharging its functions effectively as provided by the Central Act 14 of 1998 and what is to be seen is the repugnancy in fact and not by mere enactment of Central Act on the same legislative field. Mr. Vasudevan, learned counsel appearing for the Electricity Board, adopted the argument of the learned Additional Advocate General.

( 6 ) THE power tariff in the State of Tamil Nadu was being revised from time to time invoking the provisions of the Tamil Nadu Revision of Tariff of Supply of Electricity Energy Act, 1978, hereinafter referred to as the State Act. Legislation on the power tariff and revision thereof before the said Act is not relevant. Section 3 of the State Act contains a non obstante clause empowering the Government to fix the tariff rates payable to the Tamil Nadu State Electricity Board, hereinafter referred to as T. N. E. B. , by any consumer, as specified in the schedule thereto. Section 4 thereof confers powers on the State Government to amend the tariff mentioned in the Schedule from time to time. The said provision reads, the State Government may, after taking into account the cost of production of energy and such other matters as may be prescribed, by notification, amend the provisions of the Schedule to this Act. the State Act was enacted tapping the Entry 38 of Concurrent List (List III) of Schedule VII of the Constitution and it received the assent of the President on 23-2-1979, was gazetted on 3-3-1979 and brought into effect retrospectively with effect from 1-3-1978. Exercising the power under S. 4 of the State Act, the State Government had been revising the tariff from time to time depending upon the exigencies to do so. The impugned Governmental orders in G. O. Ms. Nos. 95 and 96 have been issued in exercise of S. 4 of the State Act making upward revision of power tariff.

( 7 ) THE Electricity Regulatory Commission Act, 1998, hereinafter referred to as the Central Act, was enacted by the Parliament and the same is traced to the same legislative Entry 38 of the Concurrent List. The Central Act came into force with effect from 25-4-1998. Article 254 of Indian Constitution reads,"254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.- (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Cl. (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State : provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. "basing upon the said constitutional provision, the learned senior counsel appearing for the petitioners submit that on the advent of the Central Act with effect from 25-4-1998, the State ceased to have the power to invoke S. 4 of the State Act and that the revision of power tariff in Tamil Nadu can now be made only by the Tamil Nadu Electricity Regulatory Commission, hereinafter referred to as T. N. E. R. C. The learned Additional Advocate-General submits that in spite of enactment of Central Act, the power still vested in the State Government as the T. N. E. R. C. did not become functional with no Chairman and even two members not having taken oath as contemplated in sub-section (4) of S. 19 of the Central Act, which reads : every member of the State Commission shall, before entering upon his office, make and subscribe to an oath of office and of secrecy in such form and in such manner and before such authority as may be prescribed. if the Central Act is operative, then the State Act cannot be invoked and on that count, the impugned G. Os. fall to ground because of the Parliamentary supremacy provided in Art. 254 (1) of the Constitution. Sub-Art. (2) of Art. 254 is inapplicable for the reason that the State did not enact any law superseding the Central Act. We now proceed to consider as to whether the impugned G. Os. are repugnant to S. 29 of the Central Act reads, 29. Determination of tariff by State Commission.- (1) Notwithstanding anything contained in any other law, the tariff for intra-State transmission of electricity and the tariff for supply of electricity, grid, wholesale, bulk or retail, as the case may be, in State (hereinafter referred to as the tariff), shall be subject to the provisions of this Act and the tariff shall be determined by the State Commission of that State in accordance with the provisions of this Act.

( 8 ) OUT of the judgments cited at Bar, seven judgments are relevant for discussion and they are (i) Kulwant Kaur v. Gurdial Singh Mann (2001 (4) SCC 262 [LQ/SC/2001/758] ) : (AIR 2001 SC 1273 [LQ/SC/2001/758] ); (ii) Belsund Sugar Co. Ltd. v. State of Bihar (1999) 9 SCC 620 [LQ/SC/1999/704] ) : (AIR 1999 SC 3125 [LQ/SC/1999/704] ); (iii) Election Commission of India v. Dr. Subramaniam Swamy (1996) 4 SCC 104 [LQ/SC/1996/861] : (AIR 1996 SC 1810 [LQ/SC/1996/861] ); (iv) Indian Aluminium Co. Ltd. v. Karnataka Electricity Board (1992) 3 SCC 580 [LQ/SC/1992/402] : (AIR 1992 SC 2169 [LQ/SC/1992/402] ); (v) Shabbir v. State, AIR 1965 All 97 [LQ/AllHC/1963/216] ; (vi) Watrap S. Subramania Aiyar v. United India Life Insurance Co. Ltd. (1928) 55 Mad LJ 385 : (AIR 1928 Madras 1215) and (vii) a decision of this Court W. P. No. 3121 of 1999. While the decisions (i) and (vi) supra are cited by the learned senior counsel for the petitioners, the rest of the decisions are cited by the learned Advocate General. The decision of the Supreme Court in Kulwant Kaur v. Gurdial Singh Mann (AIR 2001 SC 1273 [LQ/SC/2001/758] ) (cited (i) supra) deals with the Parliamentary supremacy whenever there is a clash between the Central legislation and the State legislation on the topics of legislation in Concurrent List. In the said case, S. 41 of the Punjab Courts Act, 1918, was held to be repugnant to S. 100 of the Code of Civil Procedure as amended in 1976. But the learned Additional Advocate General submits that the situation in the instant case is quite different and that the facts of this case are more closer to the dicta laid down by the Supreme Court in the decision in Belsund Sugar Co. Ltd. v. State of Bihar, (AIR 1999 SC 3125 [LQ/SC/1999/704] ) (cited (ii) supra ). In that decision, the provision of Bihar Agricultural Produce Markets Act, 1960 fell for consideration. The argument was that a particular provision of the State Act empowering the levy of market fee was repugnant to the Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981 read with Sugarcane (Control) Order, 1966, and Sugar (Control) Order, 1966, issued under the Essential Commodities Act. Such question does not arise in this case. But the learned Additional Advocate General draws our attention to paragraph 169 of the said judgment and submits that the repugnancy must exist in fact and that inasmuch as the T. N. E. R. C. is not functioning, there is no repugnancy in fact and as such, the impugned G. Os. are sustainable. In Indian Aluminium Co. Ltd. v. Karnataka Electricity Board, (AIR 1992 SC 2169 [LQ/SC/1992/402] ) (cited (iv) supra), the point was as to whether Electricity (Supply) (Karnataka Amendment) Act, 1981, was repugnant to Industries (Development and Regulation) Act, 1951, a Central legislation. While reiterating the parliamentary supremacy, the Supreme Court held that in deciding the question of legislative competence, the Constitution should not be construed with a narrow or pedantic approach and as a mere law and it should be construed as a machinery by which laws are made and such interpretation should be made broadly and liberally and that the entries in the Constitution only demarcate the legislative field of the respective legislature and do not confer legislative power as such. In the said case, in spite of the tripartite agreement between the Karnataka Electricity Board, Karnataka Government and the Indian Aluminium Company, specifying the electric tariff for a stipulated period, State amendment was brought forth increasing the tariff and that was questioned as being unconstitutional and repugnant to the Industries (Development and Regulation) Act, 1951. Firstly, the matter was dealt with by the Karnataka High Court and it upheld the contention of the State Government that even though S. 18-G of the Industries (Development and Regulation) Act empowered the Central Government to issue notification on the subject, as no such notification was issued, the State Act was intra vires the Constitution. The said statement of law made by the High Court was upheld by the Supreme Court.

( 9 ) IN our constitutional scheme, the Parliamentary supremacy provided in Art. 254 of Constitution is well settled. A reading of Central Act makes it obvious that the Parliament did not intend to impose on the State Governments to compulsorily constitute State Electricity Regulatory Commission. The language employed in Ss. 3 and 17 of the Central Act makes the above legal position very clear. Section 3 of the Central Act reads, 3. Establishment and incorporation of Central Commission.- (1) The Central Government shall, within three months from the date of the commencement of this Act, by notification in the Official Gazette, establish a body to be known as the Central Electricity Regulatory Commission to exercise the powers conferred on, and the functions assigned to it, under this Act.- (2) to (5 ). . . . . . . . . . . . . . . . . " the word shall is very significant, which makes it obligatory on the Central Government to constitute Central Electricity Regulatory Commission per force. What is more, even a time frame of three months reckoning from the date of commencement of the has been stipulated and there is no option for the Central Government but to constitute the Central Commission and it has been so constituted. In contrast, S. 17 dealing with the State Electricity Regulatory Commission is worded differently and not in a mandatory language but it is option. Section 17 reads :"17. Establishment and incorporation of State Commission.- (1) The State Government may, if it deems fit, by notification in the Official Gazette, establish, for the purposes of this Act, a Commission for the State to be known as the (name of the State) Electricity Regulation Commission. (2) to (9 ). . . . . . . . . . . . . . . . . . . . . . . . "the words, the State Government may, if it deems fit, do not impose any obligation on the State Government to constitute a State Commission and it is only, an enabling provision. There cannot be any enforcement of an enabling provision. But the State of Tamil Nadu has opted to constitute the State Commission and T. N. E. R. C. has been constituted by a notification issued vide G. O. Ms. No. 58, Energy Department, dated 17-3-1999.

( 10 ) NOW, the lis is in a narrow compass as to whether the Commission became functional in terms of the Central Act so as to oust the power and jurisdiction of the State Government to exercise the power under S. 4 of the State Act.

( 11 ) G. O. MS. No. 58, Energy Department, dated 17-3-1999 was issued by the State of Tamil Nadu constituting T. N. E. R. C. with Mr. K. Venkatesan, I. A. S. (Retd.) as Chairperson and M/s. E. C. Arunachalam, Chief Engineer (Retd.) and Mr. M. G. Devasagayam, I. A. S. (Retd.) as Members. But the Chairperson and Mr. Devasagayam refused to honour the assignments. Only Mr. Arunachalam assumed charge as a Member in July, 1999. Later, one Mr. D. S. Hanumantha Rao was appointed as a Member, who took charge in September, 1999. But no Chairperson has been appointed. While it is true that they did not take oath of allegiance as contemplated by sub-section (4) of S. 19 of the Central Act, they cannot be found fault with, as the State Government did not frame Rules in that regard. Section 57 of the Central Act confers power on the State Government to frame the Rules and Cl. (b) of sub-section (2) of S. 57 makes a specific reference for framing the Rule regarding the form and the matter of and the authority before whom the oath of office and of secrecy should be subscribed. The said clause runs,"57. Power of State Government to make rules.- (1 ). . . . . . . . . . . . . . . . . . . . . . . . . (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :- (a ). . . . . . . . . . . . . . . . . . . . . . . . . (b) the form and the manner in which and the authority before whom the oath of office and of secrecy should be subscribed under sub-section (4) of S. 19. "for acceding to the contention of the State Government that since two members have not taken oath as contemplated under S. 19 (4) of the Central Act and as such their presence in the Commission has to be just ignored, the Government had to perform its statutory obligation of framing the Rule in that regard. In the absence of framing of a Rule by the State Government in spite of the Rule making power conferred in that regard, it cannot lie in the mouth of the State Government to contend that two members have not been functioning in accordance with the. Mr. R. Muthukumaraswamy, learned Additional Advocate General, cites the judgment of a Division Bench of Allahabad High Court in Shabbir v. State, (AIR 1965 All 97 [LQ/AllHC/1963/216] ) (cited (v) supra) in support of his argument that in the absence of subscribing oath, the members cannot be deemed to be functioning. But the ratio of the said judgment is inapplicable to the instant case. There a Division Bench of the Allahabad High Court was dealing with the provision contained in Art. 219 of the Indian Constitution, which specifically deals with subscribing oath. Article 219 reads thus,"219. Oath or affirmation by Judges of High Courts.-every person appointed to be a Judge of a High Court shall, before enters upon his office, make and subscribe before the Governor of the State, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule. "the form has been set out in the Third Schedule and by a later Constitutional Amendment Act, the form was changed and in that context, adjudication was made by the Allahabad High Court holding that before entering office, a Judge has to subscribe oath in accordance with the form set out and in that case, even though the oath was taken according to the old format, it was held that that was a mere irregularity. In the Central Act, the procedure relating to taking oath is left to the Rule making authority and that is the State Government in so far as the State Commission is concerned and as already stated above, the State Government has failed to frame Rule. The judgment of the Allahabad High Court referred to above is, therefore, not of any help to the State Government. On the other hand, the argument of Mr. Sriram Panchu, the learned senior counsel appearing for some of the petitioner, is that the State Government having failed to frame the Rules cannot turn back and take advantage of its wrong and the judgment cited by him reported in Watrap S. Subramania Aiyar v. United India Life Insurance Co. Ltd. , (AIR 1928 Mad 1215 [LQ/MadHC/1928/242] ) (cited (vi) supra), is acceptable. That apart, the two members namely M/s. E. C. Arunachalan and D. S. Hanumantha Rao convened five meetings. They had also framed Conduct of Business Regulations in exercise of the powers under S. 58 of the Central Act and in their first meeting on 8-3-2000, approved for publication of the said Regulations in the Official Gazette. Pursuant to the same, the said Business Regulations were Gazetted on 17-5-2000.- Second meeting was held on 20-6-2000. The decision taken was to accept the financial assistance from M/s. Power Finance Corporation Ltd. (PFC) and authorising D. S. Hanumantha Rao to execute the agreements, deeds and other relevant documents with other financial institutions.- The third meeting was held on 3-10-2000 to fill up the post of Secretary in T. N. E. R. C. under S. 21 (1) of the E. R. C. Act, 1998. It is mentioned therein that T. N. E. R. C. was constituted by the Government vide G. O. Ms. No. 58 Energy (A1) Department, dated 17-3-1999, that members have assumed charge during July and September, 1999, that the Commission started functioning with skeleton staff sanctioned by the Government and framed various Regulations and Gazetted them also and considering the increase in the work, filling up the post of Secretary was sought for and the name of R. Balasubramanian, Executive Engineer, T. N. E. B. on deputation to T. N. E. R. C. was suggested.- The fourth meeting was held on 14-11-2000 reiterating the Resolution to accept the financial assistance from P. F. C. for procurement of computer based projection equipment and to authorise D. S. Hanumantha Rao to sign the necessary papers.- The fifth meeting was held on 16-3-2001 seeking upgradation of the post of Secretary from that of Executive Engineer to Superintending Engineer and to continue Mr. Balasubramanian on promotion as Superintending Engineer as Secretary of T. N. E. R. C. Mr. Balasubramanian has been promoted to the post of Superintending Engineer with effect from 4-12-2000 vide (Permanent) B. P. (Ch) No. 301, Secretariat Branch, dated 4-12-2000. It has been decided to allow the following perks available to his grade in the Tamil Nadu Electricity Board, i. e. as Superintending Engineer, T. N. E. R. C. from the date of his joining as Superintending Engineer. 1. Providing vehicle facility from his residence to office and back; 2. Purchase of one Tamil and one English newspaper at his residence; 3. To pay his residence telephone bill to the extent used for official purpose. After this, there is no meeting of T. N. E. R. C.

( 12 ) IN view of the above, we are unable to countenance the argument of Mr. R. Muthukumaraswamy, learned Additional Advocate General, that existence of the above two members in the State Commission can be treated as non est in law. The Doctrine of necessity relied upon by the learned Additional Advocate General and the decision cited by him in Election Commission of India v. Dr. Subramaniam Swamy (cited (iii) supra) have got no relevance insofar as this case is concerned. The Supreme Court has propounded the Theory of Doctrine of Necessity in a different context.

( 13 ) IF we stop here, then the writ petitions are necessarily to be allowed, which would result in the quashing of the impugned notifications. But there is another aspect to the matter and that is the absence of the Chairperson. Learned Additional Advocate General submits that even if the members can be deemed to be functioning, the Commission had been non-functional and particularly in the context of revision of power tariff. The State Electricity Regulatory Commission shall consist of a Chairperson and two members. There cannot be a Commission without a Chairperson. Indisputably, there had been no Chairperson ever since the constitution of T. N. E. R. C. as Mr. Venkatesan, who was appointed as Chairperson, has refused to assume the office and relinquished his appointment. It is understandable as to why no effort has been made by either the previous Government or the present Government to appoint a Chairperson. The successive Governments ought to know that the Commission cannot function in terms of Central Act for realising the objects and intendment of the unless the Chairperson is appointed, as the Chairperson is the Chief Executive of the State Commission. While it was open to the State Government not to constitute the State Government, as already stated above that S. 17 of the Central Act is only an enabling provision, but having constituted the Commission in exercise of the power under S. 17 of the Central Act, it was incumbent upon the State Government to see that T. N. E. R. C. functions effectively. Not only there is in action on the part of the present Government in this regard but the previous Government also was a party to in-action. It is interesting to refer to the action of the previous Government in exercising the power of revision of power tariff culminating in G. O. Ms. No. 3, Energy Department, dated 7-1-2000. In the Note of the Energy (A-1) Department, dated 3-5-1999, it was noticed that even though G. O. Ms. No. 58, dated 17-3-1999 was issued constituting Tamil Nadu State Electricity Regulatory Commission with a Chairperson and two members for the purpose of rationalisation of electricity tariff etc. , the Chairperson and two members have not taken oath of office till the said date and even if the Commission assumes office, it may take some time to settle down and up the work assigned and inasmuch as the last revision of electricity tariff was ordered in July, 1998 and there was necessity to increase the said tariff in view of the gap between revenue and expenditure, the Law Departments clarification was sought for as to whether it is legal for the State Government to take up revision of electricity tariff based on the proposal of Tamil Nadu Electricity Board as was done on earlier occasions. The Law Department, by its reply note dated 10-5-1999, has clarified the legal position that the Commission cannot function if the Chairperson and Members have not assumed the charge and only when they assume charge, the question of their functioning will come into effect and sought for information in that regard from the Energy Department. The Energy Department, by its note dated 12-5-1999, clarified that the Chairperson and other two Members have not taken oath of office so far then and hence, the Chairperson and other two members have not assumed charge so far as no office of S. E. R. C. has started functioning. By its Note dated 9-6-1999, the Law Department opined that merely because the Regulatory Commission has been constituted, it cannot be concluded that the State Government is deprived of its power to discharge the functions till the Regulatory Commission starts functioning effectively and as per the requirements of the. This was on the premise that the Regulatory Commission had not started functioning; then the opinion given was that it is open to the State Government to take up the revision of electricity tariff based on the proposal of T. N. E. B. as was done hitherto. This Note was accepted by Energy Department on 19-6-1999. On 24-9-1999, the Energy Department had again sought for a clarification from the Law Department stating that even though one Mr. K. Venkatesan was appointed as the Chairman of S. E. R. C. , he has conveyed his inability to take up the post on health grounds but members M/s. E. C. Arunachalam and D. S. Hanumantha Rao have assumed their office on 1-7-1999 and 22-9-1999 respectively and the Commission has also found a rental premises at Alwarpet, Chennai and started its office with skeleton staff taken from Tamil Nadu Electricity Board on deputation and as to whether in the said circumstances, the Government could embark on exercise for revision of electricity tariff. But by Note dated 26-9-1999, the Law Department has sought for some more particulars from the Energy Department and the Energy Department having given the same on 27-6-1999, the Law Department, by its Note dated 6-10-1999,has opined that the process of constitution of State Commission has not reached its completion and, therefore, the requirement as to notification in the Official Gazette regarding the Head Office has not been carried out and apart from this unfulfilled statutory requirement, there is no Chairman for the Commission and in the circumstances, previous Note holds good and it is open to the Government to effect revision of tariff rate as effected hitherto. The result is the revision of power tariff effected by issuance of G. O. Ms. No. 3, Energy Department, dated 7-1-2000 referred to supra. Of course, the present Government has repeated the feat of its predecessor by issuing the impugned G. Os. on the same analogy that since T. N. E. R. C. is not functional without their being Chairperson and a Member, treating one member as not conforming to the mandatory requirement of the Central Act to discharge the functions of the State Commission. We are unable to appreciate the lethargic attitude of the successive Governments in not giving full effect to the functioning of T. N. E. R. C. But on that count, we cannot set at naught the impugned Governmental orders. A Full Bench judgment rendered by this Court in W. P. No. 3121 of 1999 cited by the learned Additional Advocate General is relevant in the context of this case. In the said case, arising out of Administrative Tribunals Act, 1985, the writ petition was entertained by this Court in the matter relating to service, which has to be dealt with by the Administrative Tribunal. The Administrative Tribunal was having only a single administrative member and in that context, it was held that as the Tribunal was not functional, the High Court was having jurisdiction to entertain the writ petition under Art. 226 of the Constitution of India. It may be relevant to point out that in view of Constitution (42nd) Amendment Act, 1976, Art. 323-A was introduced investing the Parliament with power of enacting a law for the Constitution of some Tribunals including Administrative Tribunal and the Supreme Court in L. Chandrakumar v. Union of India (AIR 1997 SC 1125 [LQ/SC/1997/514] ), held that the service matter should first be filed before the Administrative Tribunal and only then, the High Courts would be entitled to entertain the writ petition under Art. 226 of the Constitution of India at the instance of the aggrieved party. Similar is the situation in the instant case. While there had been inaction on the part of the successive Governments in not making T. N. E. R. C. functional by exercising the powers conferred under the Central Act, we cannot ignore the public interest involved as there had been necessity to revise the tariff to electrical energy by upward revision to make the electricity supply financially viable.

( 14 ) IN view of what is stated supra, we uphold the impugned G. O. Ms. Nos. 95 and 96, dated 28-11-2001 and 5-12-2001 respectively and dismiss the W. P. Nos. 23807 and 25219 of 2001. We allow W. P. No. 25220 of 2001 and direct the State Government to make the T. N. E. R. C. fully functional to act in consonance with the Central Act.

( 15 ) WE make it clear that future power revision tariff shall be done only by T. N. E. R. C. The first respondent shall frame the Rules under S. 57 of the Central Act within a period of 15 days from today. To avoid unnecessary litigation in future, the Chairperson and Member, who are said to have been appointed just the other day, be directed to subscribe oath in accordance with the Rule to be framed as directed above.

( 16 ) WITH regard to Business Regulations, which have been framed by two Members, we need to clarify that we referred to the framing of the said Regulations only in the context of the effect of the erstwhile Members not subscribing to oath and to point out that in the absence of the framing of statutory Rules by the State Government, assumption of charge by the said members and continuing to function as such, cannot be found fault with. T. N. E. R. C. , after it becomes functional as directed above, shall look into the aspect as to whether Business Regulations already framed and Gazetted should be reissued or not. In the facts and circumstances of the case, we direct the parties to bear their own costs. Order accordingly.