Full Judgment Text
Reportabl
e
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6128 OF 2009
Himachal Pradesh State Electricity Regulatory
Commission and another ...Appellants
Versus
Himachal Pradesh State Electricity
Board ...Respondent
WITH
CIVIL APPEAL NO. 6129 of 2009
WITH
CIVIL APPEAL NO. 6130 of 2009
WITH
CIVIL APPEAL NOS. 6131 of 2009
WITH
CIVIL APPEAL NO. 6132 of 2009
JUDGMENT
WITH
CIVIL APPEAL NO. 6133 of 2009
J U D G M E N T
Dipak Misra, J.
Page 1
2
These appeals, by special leave, are directed against
the common Judgment and order dated 21.11.2007
passed by the High Court of Himachal Pradesh in FAOs
(Ord.) Nos. 489, 490, 491, 492, 493 & 494 of 2002
whereby the learned Single Judge overturned the decision
dated 17.08.2002 rendered by the Himachal Pradesh
State Electricity Regulatory Commission (for short, “the
Commission”) constituted under the provisions of Chapter
IV of Electricity Regulatory Commission Act, 1998
(hereinafter referred to as “the 1998 Act”).
2. The controversy that has emerged for
consideration being common to all the appeals, we shall
adumbrate the facts from Civil Appeal No. 6128 of 2009
for the sake of convenience.
JUDGMENT
3. The facts requisite to be stated are that the
Commission was established for rationalization of
electricity tariff, transparent policies regarding subsidies,
promotions of efficient and environmentally benign
policies and for matters connected therewith or incidental
thereto. In exercise of the power conferred on it under
Sections 22 and 29 of the 1998 Act the Commission vide
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3
order dated 29.10.2001 determined the tariff applicable
for electricity in the State of Himachal Pradesh. While
determining the tariff it also issued certain directions
which are as follows:-
(a) “Furnishing of information and also periodical
reports with respect to the value of the
assets and capital projects of the Board.
(b) Replacement of all dead and defective
st
meters by electronic meters from 31 March,
2002 onwards and reporting the status, as on
st st
31 December, 2001 by 31 March, 2002.
(c) To develop and implement a comprehensive
public interaction programme through
Consultative Committees, preparation,
publication and advertisement of material
helpful to various consumer interest groups
and general public on various activities of the
utility, dispute settlement mechanism,
accidents, rights and obligations of the
consumers etc. Accordingly, the Board was
directed on September 22, 2001, to submit
its plan for approval of the commission and
st
implement the same by 31 March, 2002.
JUDGMENT
(d) Submission of plans, short term and long
st
term, by 31 March, 2002, for rationalization
of existing manpower for improvements in
efficiency through scientific engineering
resources management, improving and
updating the organization strategies and
systems and skills of human resources for
increased productivity. The Board in its
rd
affidavit of 3 October, 2001 has agreed to
comply and submit the above study by the
above-mentioned date.
Page 3
4
st
(e) Submission of a plan by 31 March, 2002, for
reducing loss, both technical and non-
technical, together with relevant load flow
studies and details of investment
requirement to achieve the planned
reductions. The Commission also observed in
th
its interim order of 20 September, 2001
passed in the course of public hearing that
investments must aim at reducing the T & D
losses and better quality of supply and
service to the consumers as it happened in
the case of Palampur area which has mixed
domestic and commercial loading. The
strategy can be considered for adoption
elsewhere also to produce similar results.
The Board has confirmed and undertaken to
st
complete this study by 31 March, 2002
(f) To do a comparison of the capital costs of
Malana Plant with the capital costs of HPSEB
st
Plants and submit a report on this by 31
March, 2002.”
4. Be it noted, the commission issued the directions
as a part of the tariff order and the said directions were
contained in paragraphs 7.1, 7.4, 7.5, 7.6, 7.8, 7.9 and
JUDGMENT
7.13. The Commission in paragraphs 7.31 and 7.32 had
further stated as follows:-
“7.31 The Commission would monitor the
progress in complying with these directions.
The Commission accordingly directs the
Board to furnish the information on
milestones required in column 3 of the Annex
(7.1) by December 31, 2001. Subsequent
reports should be sent every quarter,
providing the information required in columns
Page 4
5
4, 5, 6 and 7. The first report should be
submitted by January 15, 2002.
7.32 In the directions where the Board is
to comply by the next tariff petition and the
same is not filed within next six months, the
directions should be complied within the next
six months.”
5. Thereafter, the Commission while discharging its
regulatory functions proceeded to review the directions
issued by it and found that part of the tariff had not been
complied with. In view of the complaints, the Commission
issued notice on 23.7.2002 under Section 45 of the 1998
Act. Pursuant to the aforesaid notice the Board filed its
reply raising the question of jurisdiction and competence
of the Commission to issue the aforesaid directions. The
Commission while dealing with the same framed number
JUDGMENT
of issues and thereafter came to hold that the Board had
not fully complied with the directions of the Commission,
and accordingly imposed penalty of Rs.5000/- on the
Board with a further stipulation that the same shall be
deposited within a period of 30 days. The Board was
directed to submit further steps taken by it before the
Commission.
Page 5
6
6. Being aggrieved by the aforesaid order, the Board
preferred an appeal under Section 27 of the 1998 Act
forming the subject matter of FAO No. 489 of 2002.
7. During the pendency of the appeal, the 1998 Act
was repealed and the Electricity Act, 2003 (for short, “the
2003 Act”) came into force. The 2003 Act was brought in
to consolidate the laws relating to generation,
transmission, distribution, trading and use of electricity
and generally for taking measures conducive to
development of electricity industry, promoting
competition therein, protecting interest of consumers and
supply of electricity to all areas, rationalisation of
electricity tariff, ensuring transparent policies regarding
subsidies, promotion of efficient and environmentally
JUDGMENT
benign policies, constitution of Central Electricity
Authority, Regulatory Commissions and establishment of
Appellate Tribunal and for matters connected therewith or
incidental thereto.
8. At this juncture, it is apt to state that the batch of
appeals was taken up for hearing by the learned Single
Judge, learned counsel for the respondent-Commission
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raised a preliminary objection about the maintainability of
the appeals. It was contended that as under Section 110
of the 2003 Act the appellate tribunal has already been
established and an appeal would lie to the appellate
tribunal as contemplated under Section 111 of the said
Act, the High Court had lost its jurisdiction to hear the
appeals. The learned Single Judge took note of the fact
that the appeals were preferred under Section 27 of the
1998 Act and at that stage an appeal was maintainable
before the High Court. The High Court referred to the
repealed Act and the language employed under Section
185 of the Act of 2003 and Section 6 of the General
Clauses Act, 1897 and analyzing the gamut of the
provisions came to hold that the appeal preferred under
JUDGMENT
the 1998 Act could be heard by the High Court even after
coming into force of the 2003 Act.
9. After dwelling upon the maintainability of the
appeal the learned Single Judge delved into the merits of
the appeal and for the aforesaid purpose, he studiedly
scrutinized the language employed in Section 22 of the
1999 Act and came to hold that when the Commission was
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approached by the Board to determine the tariff for
electricity, the Commission was called upon to discharge
the functions mentioned in sub-Section 1 (a) of Section 22
of the 1998 Act and under the said provision it had the
jurisdiction to issue further directions. Thereafter, the
learned Single Judge proceeded with regard to the
monitoring facet by the Commission, appreciated the
directions and, eventually, opined thus:-
“Commission’s observation that the
directions were issued in the larger interest
of the Board and the consumers is also out of
the context. As already noticed, the
Commission was approached by the Board to
fix the tariff of electricity. Once the tariff had
been fixed the job of the Commission was
over. It became functus officio once the
function of determination of tariff had been
performed. The interests of the Board and
the consumers were required to be borne in
mind and protected while fixing the tariff.
The Commission could not have arrogated to
itself and superintendence and control of the
Board on the pretension of watching and
protecting the larger interests of the Board
and the consumers.”
JUDGMENT
As stated earlier, the aforesaid judgment and order
are the subject matter of assail before us in these
appeals.
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10. Mr. Jaideep Gupta, learned senior counsel,
questioning the sustainability of the judgment of the High
Court has raised the following submissions:-
(a) The High Court has absolutely flawed by coming to
hold that appeal was maintainable before it despite a
separate forum having been created and provision
for appeal being engrafted under Section 111 of the
2003 Act. It is urged by him that the High Court has
totally misguided itself in interpreting the Repeal and
Saving provision contained in Section 185 of the
2003 Act.
(b) The High Court has erred in holding that despite the
repeal of the 1998 Act and coming into force of the
2003 Act the right to prefer an appeal under the old
Act would still survive. It is urged by him that from
the schematic content of the 2003 Act it is
graphically clear that a contrary intention of the
legislature is clear from the 2003 Act that the appeal
has to lie to the appellate tribunal and the High Court
has been divested of its appellate jurisdiction to deal
with the pending appeals.
(c) The view expressed by the High Court that the Board
had approached the Commission to fix the electricity
tariff and once the said tariff had been fixed by the
Commission it became functus officio and it could not
have arrogated to itself the power of
superintendence and control of the Board on the
pretext of monitoring of larger public interest, is
sensitively susceptible. Learned counsel would
submit that the Commission had been conferred
power under Section 22 (1) of the 1998 Act by virtue
of issuance of notification by the State of Himachal
Pradesh but the High Court failed to appreciate and
scrutinize the effect of conferment of power under
the said provision as a consequence of which an
indefensible order came to be passed.
JUDGMENT
Page 9
10
11. Mr. Anand K. Ganesan, learned counsel appearing for
the respondent-Board, resisting the aforesaid submissions
contended as follows:-
(i) The conclusion arrived at by the High Court that the
appeal can be heard despite repeal of the 1998 Act
and introduction of the 2003 Act on the basis of
Section 6 of the General Clauses Act 1897 and the
provision contained in Section 185(5) of the 2003 Act
cannot be found fault with, for there is no express
provision to take away the vested right of appeal and
no contrary intention can be gathered from any of
the provisions of the new enactment.
(ii) The right of appeal before the High Court was a
vested right and the same has not been taken away
by the 2003 Act and, therefore, the opinion
expressed by the High Court being impregnable
deserves to be concurred with by this Court. Right of
forum as regards an appeal is also a vested right
unless abolished or altered by subsequent law and in
the case at hand the 2003 Act does not extinguish
the said vested right and hence, the judgment and
order passed by the High Court are impeccable.
(iii) The Commission under the 1998 Act could not have
issued directions inasmuch as the notification issued
by the State had only conferred powers under
Section 22 (1) of the 1998 Act and not under any
other provisions, and hence, the directions issued
travel beyond the power conferred which have been
appositely nullified. It is further argued that though
the finding of the High Court that the Commission
had become functus officio may not be a correct
expression in law but directions issued being without
jurisdiction, the Commission could not have been
proceeded and imposed penalty. Alternatively, it is
submitted that even if the issue of jurisdiction is
determined in favour of the Commission. The
directions issued by it having been substantially
JUDGMENT
Page 10
11
complied with by the respondent and there being no
willful and deliberate non-compliance, on the facts
and circumstances imposition of penalty was not
justified.
12. First, we shall proceed to deal with the jurisdiction of
the High Court to hear the appeal after coming into force
the 2003 Act. The Board, as is manifest, was grieved by
order imposing penalty. The relevant part of the order of
the Commission reads as follows:-
“The instant matter is one of the first
incidents of the contravention of the
Commission orders/ directions attributable to
the conduct of Respondents / objectors. The
commission has determined the quantum of
fine to be imposed after considering the
nature and extent of non-compliance and
other relevant factor as per Regulation 51 (iii)
of HPERC’s Conduct of Business Regulations,
2001 under the overall provision of Section
45 of the ERC Act, 1998. Penalty of Rs.
5,000/- only is hereby imposed upon
Respondent No. 7-HPSEB. The penalty be
deposited with the Secretary of the
Commission within a period of 30 days from
today. Additional penalty for continuing
failure @ Rs. 300/- only per day is further
imposed on HPSEB and shall be ipso facto
recoverable immediately after January 15,
2002 until the date of compliance to the
Commission’s satisfaction to be so notified by
the Commission. The Board shall submit the
Status / Action taken reports on the fifteenth
day of every month until compliance is
made.”
JUDGMENT
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13. By the time the order was passed by the Commission
it was subject to challenge in appeal before the High Court
under Section 27 of the 1998 Act, which reads as follows:-
“27. Appeal to High Court in certain
cases . – (1) Any person aggrieved by any
decision or order of the State Commission
may file an appeal to the High Court.
(2) Except as aforesaid, no appeal or
revision shall lie to any court from any
decision or order of the State Commission.
(3) Every appeal under this section shall be
preferred within sixty days from the date of
communication of the decision or order of the
State Commission to the person aggrieved by
the said decision or order.
Provided that the High Court may entertain an
appeal after the expiry of the said period of
sixty days if it is satisfied that the aggrieved
person had sufficient cause for not preferring
the appeal within the said period of sixty
days.”
JUDGMENT
14. It is not in dispute that when the appeals were
preferred under Section 27 of the 1998 Act pending
before the High Court awaiting adjudication the 2003 Act
was enacted. Chapter XI of the 2003 Act deals with
“Appellate Tribunal for Electricity”. Section 110 deals with
establishment of appellate tribunal. The said provision
reads as under:-
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“110. Establishment of Appellate Tribunal .
– The Central Government shall, by notification,
establish an Appellate Tribunal to be known as
the Appellate Tribunal for Electricity to hear
appeals against the orders of the adjudicating
officer or the Appropriate Commission [under
this Act or any other law for the time being in
force].”
15. Section 111 provides for an appeal to the appellate
tribunal. Sub-Sections (1) and (2) being relevant for the
present purpose are reproduced below:-
“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 and penalty shall,
while filling 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.
JUDGMENT
(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 in such form, verified in
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14
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.”
16. From the aforesaid provision it is clear as crystal that
a different forum of appeal has been created under the
new legislation with certain conditions.
17. At this stage, we may usefully refer to Section 185
which deals with Repeal and Saving. It reads as follows:-
“185. Repeal and saving . -(1) Save as
otherwise provided in this Act, the Indian
Electricity Act, 1910 (9 of 1910, the Electricity
(Supply) Act, 1948 (54 of 1948) and the
Electricity Regulatory Commissions Act, 1998
(14 of 1998) are hereby repealed.
(2) Notwithstanding such repeal, -
JUDGMENT
(a) anything done or any action taken or
purported to have been done or taken
including any rule, notification, inspection,
order or notice made or issued or any
appointment, confirmation or declaration
made or any licence, permission, authorisation
or exemption granted or any document or
instrument executed or any direction given
under the repealed laws shall, in so far as it is
not inconsistent with the provisions of this Act,
be deemed to have been done or taken under
the corresponding provisions of this Act.
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(b) the provisions contained in sections 12 to
18 of the Indian Electricity Act, 1910 (9 of
1910) and rules made thereunder shall have
effect until the rules under section 67 to 69 of
this Act are made;
(c) The Indian Electricity Rules, 1956 made
under section 37 of the Indian Electricity Act,
1910 (9 of 1910) as it stood before such
repeal shall continue to be in force till the
regulations under section 53 of this Act are
made;
(d) all rules made under sub-section (1) of
section 69 of the Electricity (Supply) Act, 1948
(54 of 1948) shall continue to have effect until
such rules are rescinded or modified, as the
case may be;
(e) all directives issued, before the
commencement of this Act, by a State
Government under the enactments specified
in the Schedule shall continue to apply for the
period for which such directions were issued
by the State Government.
(3) The provisions of the enactments specified
in the Schedule, not inconsistent with the
provisions of this Act, shall apply to the States
in which such enactments are applicable.
JUDGMENT
(4) The Central Government may, as and
when considered necessary, by notification,
amend the Schedule.
(5) Save as otherwise provided in sub-section
(2), the mention of particular matters in that
section, shall not be held to prejudice or affect
the general application of section 6 of the
General Clauses Act, 1897 (10 of 1897), with
regard to the effect of repeals.”
Page 15
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18. It is submitted by Mr. Jaideep Gupta, learned senior
Counsel that when the 1998 Act has been repealed and a
new legislation has come into force the intention of the
legislature is clear to the effect that the appeals are to be
heard by the newly constituted appellate tribunal.
Learned senior counsel would also contend that if the
interpretation placed by the High Court is accepted then
there would be two appellate authorities after the
enactment of the 2003 Act which would lead to an
anomalous situation. In this context Mr. Gupta has
commended us to the authorities in State of Punjab v.
1
Mohar Singh , Brihan Maharashtra Sugarsyndicate
2
Ltd. v. Janardan Ramchandra Kulkarni and Others ,
Manphul Singh Sharma v. Ahmedi Begum (Smt)
JUDGMENT
(since deceased) through her alleged legal
representative/successors (A) M.A. Khan (B) Delhi
3
Wakf Board , Commissioner of Income Tax,
4
Bangalore v. R. Sharadamma and Commissioner of
5
Income Tax, Orissa v. Dhadi Sahu .
1
(1955) 1 SCR 893
2
AIR 1960 SC 794
3
(1994) 5 SCC 465
4
(1996) 8 SCC 388
5
1994 Supp (1) SCC 257
Page 16
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19. In Mohar Singh (supra), the Court has ruled thus:-
“Whenever there is a repeal of an enactment,
the consequences laid down in section 6 of the
General Clauses Act will follow unless, as the
section itself says, a different intention appears.
In the case of a simple repeal there is scarcely
any room for expression of a contrary opinion.
But when the repeal is followed by fresh
legislation on the same subject we would
undoubtedly have to look to the provisions of
the new Act, but only for the purpose of
determining whether they indicate a different
intention. The line of enquiry would be, not
whether the new Act expressly keeps alive old
rights and liabilities but whether it manifests an
intention to destroy them. We cannot therefore
subscribe to the broad proposition that section
6 of the General Clauses Act is ruled out when
there is repeal of an enactment followed by a
fresh legislation. Section 6 would be applicable
in such cases also unless the new legislation
manifests an intention incompatible with or
contrary to the provisions of the section. Such
incompatibility would have to be ascertained
from a consideration of all the relevant
provisions of the new law and the mere absence
of a saving clause is by itself not material. It is
in the light of these principles that we now
proceed to examine the facts of the present
case.”
JUDGMENT
[Underlining is ours]
20. In Messrs. Hoosein Kasam Dada (India) Ltd. v.
6
The State of Madhya Pradesh and others , this Court
was considering the effect of amendment of provisions of
6
AIR 1953 SC 221
Page 17
18
Central Provinces and Berar Sales Tax Act. Section 22(2)
prior to the amendment of the Act stipulated that no
appeal against an order of assessment with or without
penalty could be entertained by the appellate authority
unless it was satisfied that such amount of tax or penalty,
or both, as the appellant had admitted due to him had
been paid. The amended provision laid a postulate that
appeal had to be admitted subject to the satisfaction of
proof of payment of tax in appeal to which the appeal had
been preferred. It was contended that the appellant was
covered under the unamended provision and that he had
not admitted any tax and hence, he was not liable to
deposit any sum along with the appeal. It was urged
before this Court that the restriction imposed by the
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amending Act could not affect his right to appeal as the
same was a vested right prior to the amendment at the
time of commencement of the proceeding under the Act.
Dealing with the said contention, the Court opined that a
right of appeal is not merely a matter of procedure but a
matter of substantive right. It was also held that the right
of appeal from the decision of an inferior tribunal to a
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superior tribunal becomes vested in a party when
proceedings are first initiated and before a decision is
given by the inferior Court. It has been further observed
that such a vested right cannot be taken away except by
express enactment or necessary intendment and an
intention to interfere with or to impair or imperil such a
vested right cannot be presumed unless such intention is
clearly manifested by express words or necessary
implication. Eventually, the Court ruled that as the old
law continues to exist for the purpose of supporting the
pre-existing right of appeal and that old law must govern
the exercise and enforcement of that right of appeal and
there is no question of applying the amended provision
preventing the exercise of that right.
JUDGMENT
21. In this context, we may refer with profit to the
Constitution Bench judgment in Garikapati Veeraya v.
7
N. Subbiah Choudhry and others . In the said
decision, the Constitution Bench referred to the leading
authority of the privy council in Colonial Sugar Refining
8
Company Ltd. v. Irving . The Constitution Bench
7
AIR 1957 SC 540
8
1905 AC 369
Page 19
20
observed that the doctrine laid down in the decision of the
privy council in Colonial Sugar Refining Company Ltd.
(supra) has been followed and applied by the Courts in
India. The passage that was quoted from the Privy
Council’s judgment is as follows:-
“As regards the general principles applicable to
the case there was no controversy. On the one
hand, it was not disputed that if the matter in
question be a matter of procedure only, the
petition is well founded. On the other hand, if it
be more than a matter of procedure, if it
touches a right in existence at the passing of
the Act, it was conceded that, in accordance
with a long line of authorities extending from
the time of Lord Coke to the present day, the
appellants would be entitled to succeed. The
Judiciary Act is not retrospective by express
enactment or by necessary intendment. And
therefore the only question is, was the appeal to
His Majesty in Council a right vested in the
appellants at the date of the passing of the Act,
or was it a mere matter of procedure? It seems
to their Lordships that the question does not
admit of doubt. To deprive a suitor in a pending
action of an appeal to a superior tribunal which
belonged to him as of right is a very different
thing from regulating procedure. In principle,
Their Lordships see no difference between
abolishing an appeal altogether and transferring
the appeal to a new tribunal. In either case
there is an interference with existing rights
contrary to the well-known general principle
that statutes are not to be held to act
retrospectively unless a clear intention to that
effect is manifested.”
JUDGMENT
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22. Thereafter, the larger Bench referred to number of
authorities and proceeded to cull out the principles as
follows:-
“23. From the decisions cited above the
following principles clearly emerge:
( i ) That the legal pursuit of a remedy, suit,
appeal and second appeal are really but steps
in a series of proceedings all connected by an
intrinsic unity and are to be regarded as one
legal proceeding.
( ii ) The right of appeal is not a mere matter of
procedure but is a substantive right.
( iii ) The institution of the suit carries with it
the implication that all rights of appeal then in
force are preserved to the parties thereto till
the rest of the career of the suit.
( iv ) The right of appeal is a vested right and
such a right to enter the superior court accrues
to the litigant and exists as on and from the
date the lis commences and although it may be
actually exercised when the adverse judgment
is pronounced such right is to be governed by
the law prevailing at the date of the institution
of the suit or proceeding and not by the law that
prevails at the date of its decision or at the date
of the filing of the appeal.
JUDGMENT
( v ) This vested right of appeal can be taken
away only by a subsequent enactment, if it so
provides expressly or by necessary intendment
and not otherwise.”
23. On a proper understanding of the authority in
Garikapati Veeraya (supra), which relied upon the Privy
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22
Council decision, three basic principles, namely, (i) the
forum of appeal available to a suitor in a pending action of
an appeal to a superior tribunal which belongs to him as
of right is a very different thing from regulating
procedure; (ii) that it is an integral part of the right when
the action was initiated at the time of the institution of
action; and (iii) that if the Court to which an appeal lies is
altogether abolished without any forum constituted in its
place for the disposal of pending matters or for lodgment
of the appeals, vested right perishes, are established. It is
worth noting that in Garikapati Veeraya (supra), the
Constitution Bench ruled that as the Federal Court had
been abolished, the Supreme Court was entitled to hear
the appeal under Article 135 of the Constitution, and no
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appeal lay under Article 133. The other principle that has
been culled out is that the transfer of an appeal to
another forum amounts to interference with existing
rights which is contrary to well known general principles
that statutes are not to be held retrospective unless a
clear intention to that effect is manifested.
24. In Dhadi Sahu (supra) , it has been held thus:-
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23
“18. It may be stated at the outset that the
general principle is that a law which brings
about a change in the forum does not affect
pending actions unless intention to the contrary
is clearly shown. One of the modes by which
such an intention is shown is by making a
provision for change-over of proceedings, from
the court or the tribunal where they are pending
to the court or the tribunal which under the new
law gets jurisdiction to try them.
xxx xxx xxx
21. It is also true that no litigant has any vested
right in the matter of procedural law but where
the question is of change of forum it ceases to
be a question of procedure only. The forum of
appeal or proceedings is a vested right as
opposed to pure procedure to be followed
before a particular forum. The right becomes
vested when the proceedings are initiated in the
tribunal or the court of first instance and unless
the legislature has by express words or by
necessary implication clearly so indicated, that
vested right will continue in spite of the change
of jurisdiction of the different tribunals or
forums.”
JUDGMENT
25. At this stage, we may state with profit that it is a
well settled proposition of law that enactments dealing
with substantive rights are primarily prospective unless it
is expressly or by necessary intention or implication given
retrospectivity. The aforesaid principle has full play when
vested rights are affected. In the absence of any
unequivocal expose, the piece of Legislation must exposit
adequate intendment of Legislature to make the provision
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retrospective. As has been stated in various authorities
referred to hereinabove, a right of appeal as well as forum
is a vested right unless the said right is taken away by the
Legislature by an express provision in the Statute by
necessary intention.
26. Mr. Gupta has endeavoured hard to highlight on
Section 111 of the 2003 Act to sustain the stand that
there is an intention for change of forum. It is the
admitted position that Legislature by expressed
stipulation in the new legislation has not provided for
transfer of the pending cases as was done by the
Parliament in respect of service matters and suits by
financial institutions/banks by enactment of
Administrative Tribunal Act, 1985 and Recovery of Debts
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due to Banks and Financial Institution Act, 1993. No
doubt right to appeal can be divested but this requires
either a direct legislative mandate or sufficient proof or
reason to show and hold that the said right to appeal
stands withdrawn and the pending proceedings stand
transferred to different or new appellate forum. Creation
of a different or a new appellate forum by itself is not
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25
sufficient to accept the argument/contention of an implied
transfer. Something more substantial or affirmative is
required which is not perceptible from the scheme of the
2003 Act.
27. It is urged by Mr. Gupta that Section 6 of the
General Clauses Act would not save the vested right of
forum in view of the language employed in Section 185(2)
of the 2003 Act. In this context, we may usefully refer to
Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal &
9
Co. and Another wherein the learned Judges referred to
the opinion expressed in Kolhapur Canesugar Works
10
Ltd. v. Union of India and distinguishing the same
observed as follows:-
“ 18. In Kolhapur Canesugar Works Ltd. v.
Union of India, this Court held: (SCC p. 551,
para 37)
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“ 37 . The position is well known that at
common law, the normal effect of repealing a
statute or deleting a provision is to obliterate
it from the statute-book as completely as if it
had never been passed, and the statute must
be considered as a law that never existed.”
19. Relying on this the submission for the
tenant is, if the repealing statute deletes the
provisions, it would mean they never existed
9
(2001) 8 SCC 397
10
(2000) 2 SCC 536
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26
hence pending proceedings under the Rent
Act cannot continue. This submission has no
merit. This is not a case under the Rent Act,
also not a case where Section 6 of the
General Clauses Act is applicable. This is a
case where repeal of rules under the Central
Excise Rules was under consideration. This
would have no bearing on the question we
are considering, whether a tenant has any
vested right or not under a Rent Act.”
28. We have referred to the aforesaid paragraphs as Mr.
Gupta has contended that when there is repeal of an
enactment and substitution of new law, ordinarily the
vested right of a forum has to perish. On reading of
Section 185 of the 2003 Act in entirety, it is difficult to
accept the submission that even if Section 6 of the
General Clauses Act would apply, then also the same does
not save the forum of appeal. We do not perceive any
contrary intention that Section 6 of the General Clauses
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Act would not be applicable. It is also to be kept in mind
that the distinction between what is and what is not a
right by the provisions of the Section 6 of the General
Clauses Act is often one of great fitness. What is
unaffected by the repeal of a statute is a right acquired or
accrued under it and not a mere hope, or expectation of,
or liberty to apply for, acquiring right (See M.S.
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27
Shivananda v. Karnataka State Road Transport
11
Corporation and Others ).
29.
In this context, a passage from Vijay v. State of
12
Maharashtra and Others is worth noting:-
“....It is now well settled that when a literal
reading of the provision giving retrospective
effect does not produce absurdity or
anomaly, the same would not be construed to
be only prospective. The negation is not a
rigid rule and varies with the intention and
purport of the legislature, but to apply it in
such a case is a doctrine of fairness.”
30. We have referred to the aforesaid passage to hold
that tested on the touchstone of doctrine of fairness, we
are also of the opinion that the legislature never intended
to take away the vested right of appeal in the forum under
the 1998 Act.
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31. On the basis of the aforesaid analysis it can safely be
concluded that the conclusion of the High Court that it had
jurisdiction to hear the appeal is absolutely flawless.
32. The next aspect that emanates for consideration is
that whether the finding recorded by the High Court that
the Commission has no authority to issue directions or to
11
(1980) 1 SCC 149
12
(2006) 6 SCC 289
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28
impose penalty as it had become functus officio is correct
or not. We may state here that the learned counsel
appearing for the parties very fairly stated that the High
Court was not correct in using the expression that the
Commission had become functus officio . Learned counsel
for the parties, however, urged that the High Court, by
stating that the Commission had become functus officio , it
meant after the Commission had fixed the tariff it had no
power to give directions or proceed with monitoring for
the purpose of compliance of the directions. It is
submitted by Mr. Ganesan, learned counsel for the
respondent, that Section 22 occurring in Chapter V of the
1998 Act deals with powers and functions of the State
Commission and for exercise of power of Board under
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Section 22(2) a notification in the official Gazette by the
State Government is required to be issued, but the same
was not issued when the Commission passed the order
and hence, it is bereft of jurisdiction. In oppugnation of
the said submission, Mr. Gupta, learned senior counsel
appearing for the Commission, has submitted that though
no notification under Section 22(2) of the 1998 Act has
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29
been issued, yet the directions which had been issued can
fall within the ambit of Section 22(1)(d) of the 1998 Act.
33. To appreciate the said submission we may refer to
Section 22(1)(d) of the 1998 Act. It reads as follows: -
“ 22. Functions of State Commission . – (1)
Subject to the provisions of Chapter III, the
State Commission shall discharge the following
functions, namely: -
xxx xxx xxx
(d) to promote competition, efficiency and
economy in the activities of the electricity
industry to achieve the objects and purposes
of this Act.”
The language employed in Section 22(1)(d) has to be
understood in its proper connotative expanse. It enables
the State Commission to carry out the function for
promoting competition, efficiency and economy in the
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activities of the electricity industry to achieve the objects
and purposes of the Act. We find that the State
Commission under Section 22(1)(d) was conferred power
to address to various facets and we see no reason that the
terms, namely, “efficiency, economy in the activity of the
electricity industry” should be narrowly construed. That
apart, it would not be seemly to say that under Section
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30
22(1) of the 1998 Act the Commission had only the power
to fix the tariff and no other power. Had that been so, the
legislature would not have employed such wide language
in Section 22(1)(d). At this stage, we may also note that
the powers enumerated under sub-section (2) of Section
22 are more enumerative in nature and the jurisdiction
conferred comparatively covers more fields. In the
present case, if we read the directions issued by the
Commission in proper perspective, the same really do not
travel beyond the power conferred under Section 22(1)(d)
of the 1998 Act. We are inclined to think so as all of them
can be connected with the tariff fixation and with the
associated concepts, namely, purpose to promote
competition, efficiency and economy in the activities of
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the electricity industry regard being had to achieve the
objects and purposes of the Act.
34. It is not inapposite to take note of the fact that the
Board had agreed to comply and submit the report.
Though the Commission later on has found some fault
with the Board, yet we factually find on a close perusal of
the explanation by the Board that there has been real
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31
substantial compliance with the directions. In this factual
backdrop, it was not correct on the part of the
Commission to impose penalty on the Board. However,
we may hasten to add that under the 2003 Act
constitution of the State Commission is governed by
Section 82. Section 86 deals with the function of the State
Commission. On a reading of Section 86 we find that at
present no notification is required to be issued to confer
any power on the State Commission. It is conferred and
controlled by the statute. If anything else is required to
be done in praesenti, the Commission is at liberty to
proceed under the provisions of the 2003 Act. Be it
clarified, our grant of liberty may not be understood to
have said that the Commission can take any action arising
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out of its earlier order dated 29.10.2001 or any
subsequent orders passed thereon. We have said so, for
the Commission and a statutory Board can really work to
achieve the objects and purposes of the 2003 Act.
35. The appeals stand disposed of in the above terms
leaving the parties to bear their respective costs.
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.............................J.
[Anil R. Dave]
.............................J.
[Dipak Misra]
New Delhi;
October 03, 2013.
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