Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 369 OF 2007
West Bengal State Electricity Board ..Appellant
Versus
Gajendra Haldea and Ors. ..Respondents
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment passed by the Appellate
Tribunal for Electricity, New Delhi (hereinafter referred to as to the
‘Tribunal’). The appeal has been filed under Section 125 of the Electricity
Act, 2003 (in short the ‘Act’).
2. The primary stand of the appellant is that though the Tribunal
accepted that Electricity Regulatory Commissions (in short the ‘Regulatory
Commission’) did not have any power to determine tariff for trading, it
invoked Sections 60 and 66 of the Act to direct all Regulatory Commissions
to fix trading margins as if it involved tariff determination. Stand of the
appellant is that only appropriate Regulatory Commission can invoke
provisions of Section 60 upon arriving at a finding that a particular licensee
or generator had conducted himself in the specified manner which has an
adverse effect on competition in the electricity industry. According to the
appellant the Tribunal issued directions on assumptions and presumptions
without any adjudication on tests laid down in Section 60 of the Act. In
essence, the stand is that the Tribunal is not empowered to determine tariff
in exercise of its revisional supervisory powers under Section 121 of the
Act. It was pointed out that the exercise of power under Section 121 of the
Act was not permissible because respondent No.1-Gajendra Haldea had
neither initiated any proceedings before the concerned Regulatory
Commission and had also not made any grievance relating to excessive
exercise or non exercise of jurisdiction by such Regulatory Commission.
Strong reliance is placed on a decision of this Court in Grid Corporation of
Orissa Ltd. v. Gajendra Haldea and Ors. (2008 (11) SCALE 313) holding
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that respondent-Gajendra Haldea cannot be treated as a person aggrieved
under the Act.
3. Respondent No.1 on the other hand supported the judgment and
submitted that Grid Corporation’s case (supra) has no application to the
facts of the case.
4. In order to appreciate the rival submissions Section 111 needs to be
noted. The same reads as follows:
“111. Appeal to Appellate Tribunal. -(1) Any person
aggrieved by an order made by an adjudicating officer under
this Act (except under section 127) or an order made by the
Appropriate Commission under this Act may prefer an appeal
to the Appellate Tribunal for Electricity:
Provided that any person appealing against the order of
the adjudicating officer levying any penalty shall, while filing
the appeal, deposit the amount of such penalty:
Provided further that where in any particular case, the
Appellate Tribunal is of the opinion that the deposit of such
penalty would cause undue hardship to such person, it may
dispense with such deposit subject to such conditions as it may
deem fit to impose so as to safeguard the realisation of penalty.
(2) Every appeal under sub-section (1) shall be filed within a
period of forty five days from the date on which a copy of the
order made by the adjudicating officer or the Appropriate
Commission is received by the aggrieved person and it shall be
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in such form, verified in such manner and be accompanied by
such fee as may be prescribed:
Provided that the Appellate Tribunal may entertain an
appeal after the expiry of the said period of forty-five days if it
is satisfied that there was sufficient cause for not filing it
within that period.
(3) On receipt of an appeal under sub-section (1), the Appellate
Tribunal may, after giving the parties to the appeal an
opportunity of being heard, pass such orders thereon as it
thinks fit, confirming, modifying or setting aside the order
appealed against.
(4) The Appellate Tribunal shall send a copy of every order
made by it to the parties to the appeal and to the concerned
adjudicating officer or the Appropriate Commission, as the
case may be.
(5) The appeal filed before the Appellate Tribunal under sub-
section (1) shall be dealt with by it as expeditiously as possible
and endeavour shall be made by it to dispose of the appeal
finally within one hundred and eighty days from the date of
receipt of the appeal:
Provided that where any appeal could not be disposed of
within the said period of one hundred and eighty days, the
Appellate Tribunal shall record its reasons in writing for not
disposing of the appeal within the said period.
(6) The Appellate Tribunal may, for the purpose of examining
the legality, propriety or correctness of Appropriate
Commission under this Act, as the case may be, in relation to
any proceeding, on its own motion or otherwise, call for the
records of such proceedings and make such order in the case as
it thinks fit.”
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5. In Grid Corporation’s case (supra) it was inter-alia observed as
follows:
“15. It is unnecessary to go into the question as to the nature
of the transaction, because respondent No.1-Gajendra Haldea
in order to prove that he had locus standi relied on Sections 121
and 142 of the Act. It was also stated that it is not in the nature
of PIL. It was stated that the prayer for refund was not being
pressed.
16. A bare reading of Sections 121 and 142 of the Act which
read as follows shows that those provisions are not applicable.
“121. Power of Appellate Tribunal - The
Appellate Tribunal may, after hearing the
Appropriate Commission or other interested party,
if any, from time to time, issue such orders,
instructions or directions as it may deem fit, to any
Appropriate Commission for the performance of
its statutory function under this Act.
“142. Punishment for non-compliance of
directions by Appropriate Commission.-In case
any complaint is filed before the Appropriate
Commission by any person or if that Commission
is satisfied that any person has contravened any of
the provisions of this Act or the rules or
regulations made thereunder, or any direction
issued by the Commission, the Appropriate
Commission may after giving such person an
opportunity of being heard in the matter, by order
in writing, direct that, without prejudice to any
other penalty to which he may be liable under this
Act, such person shall pay, by way of penalty,
which shall not exceed one lakh rupees for each
contravention and in case of a continuing failure
with an additional penalty which may extend to six
thousand rupees for every day during which the
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failure continues after contravention of the first
such direction.”
17. Therefore, the Appellate Tribunal was wrong in
interfering with the conclusions of CERC that respondent
No.1’s petition was not entertainable and/or maintainable.”
6. The order passed by the Tribunal cannot be maintained in view of
what is stated in Grid Corporation’s case (supra) and is set aside. The appeal
is allowed without any order as to costs.
………………………………….J.
(Dr. ARIJIT PASAYAT)
………………………………….J.
(ASOK KUMAR GANGULY)
New Delhi,
April 09, 2009
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