Full Judgment Text
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CASE NO.:
Appeal (civil) 3996 of 2006
PETITIONER:
Chattisgarh Vidyut Mandal Abhiyanta Sangh
RESPONDENT:
Chattisgarh State Electricity Regulatory Commission & Anr
DATE OF JUDGMENT: 19/09/2007
BENCH:
H.K. SEMA & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 3996 OF 2006
(With C.A.No.4268 of 2006 & C.A.No.4529 of 2006)
H.K.SEMA,J
1. Civil Appeal No.3996 of 2006 is filed by
Chhattisgarh Vidyut Mandal Abhiyanta Sangh. Civil Appeal
No.4268 of 2006 is filed by Chhattisgarh State Electricity
Board and Civil Appeal No.4529 of 2006 is filed by M/s Jindal
Steel and Power Limited.
2. All these appeals are directed against the common
judgment and order of the Tribunal dated 11.5.2006 passed in
Appeal Nos. 179 of 2005, 188 of 2005, 16 of 2006 and 27 of
2006 preferred under Section 111 of the Electricity Act, 2003
(in short the Act). In the aforesaid appeals, the appellants
have challenged the order dated 29.11.2005 passed by the
Chhattisgarh State Electricity Regulatory Commission (in
short the Commission)
3. We have heard Mr. Ravi Shankar Prasad, learned
senior counsel, appearing on behalf of Chhattisgarh State
Electricity Board - appellant in C.A.No.4268 of 2006; Mr.
Shanti Bhushan, learned senior counsel, appearing on behalf
of M/s Jindal Steel and Power Limited \026 appellant in
C.A.No.4529 of 2006 and Mr. Kavin Gulati, learned counsel
appearing on behalf of Chhattisgarh Vidyut Mandal Abhiyanta
Sangh \026 appellant in C.A.No. 3996 of 2006.
4. Counsel for the appellant in C.A.No.3996 of 2006
has adopted the arguments of Mr. Ravi Shankar Prasad,
learned senior counsel, appearing for the appellant in
C.A.No.4268 of 2006.
5. In C.A.No.4268 of 2006, the appellant has assailed
the order dated 29.11.2005 passed by the Commission,
granting license in favour of respondent No.2 herein and the
appellant in C.A.No.4529 of 2006.
6. Mr. Ravi Shankar Prasad, learned senior counsel
appearing for the appellant, would contend that the impugned
order of the Commission granting license to respondent No.2 -
M/s Jindal Steel and Power Limited, is contrary to the
provisions of Section 14 particularly proviso 6 of the Section.
He would also contend that the grant of license is contrary to
Section 43, the National Electricity Policy framed under
Section 3 particularly 5.4.7. which according to the counsel is
statutory in character and sub-rule 2 of Rule 3 of the Code of
Conduct Rules, 2005 and explanation thereof. He would also
contend that the grant of license in favour of respondent No.2
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would also offend the provisions of Section 41 proviso 3 and
Section 86(4) of the Act. In this connection, counsel has taken
us to the grounds taken in the memo of appeal filed by the
appellant. He has also taken us to the entire impugned
judgment rendered by the Tribunal. The Tribunal has not at
all dealt with the grounds urged by the appellant in the
judgment. The Tribunal, however, rejected the grounds in
paragraph 38 as under:
"Taking up the fourth point, Concedingly
after coming into force of The Electricity
Act 2003 the Jindal Power has submitted
an application for grant of distribution
license under Section 12 of the Act.
Section 14 of the Act provides for the grant
of license. Section 15 of the Act prescribes
procedure for grant of license. Though the
Electricity Board has raised an objection, it
is a clear after thought presumably
because of change or shifting of
personalities in power, and such shifting
stand had been adopted. The objections
raised by Electricity Board are devoid of
merits. The Regulatory Commission has
considered the request of Jindal Power and
directed issue of distribution license. We
do not find any illegality or error in the
grant of license as Jindal Power do possess
all the requirements for the grant."
7. M/s Jindal Steel and Power Limited - appellant in
C.A.No.4529 of 2006, was aggrieved by the order of the
Commission recorded in paragraph 22 of the Order.
Paragraph 22 of the Order is in the following terms:-
"The last issue for discussion is the
treatment of the period from 1.4.04 till
the date of the grant of distribution
licence, during which supply of power by
the applicant has been without legal
authority. As already discussed in para
11 to 13 ante, the applicant did not have
the necessary legal authority either under
the 1910 Act or under the present Act to
supply electricity in his industrial estate.
This constitutes a clear contravention of
the provisions of Sec.12 of the Act that
mandates licence to be obtained for
supply of electricity. This act of the
applicant is punishable under Sec.142 of
the Act. The applicant is clearly liable for
penalty under this provision of law.
Although no opportunity has specifically
been provided to the applicant of being
heard in this regard as required and the
provision of this section, the elaborate
proceedings in this case has provided
sufficient opportunity to the applicant to
prove that he had not contravened the
provision of the Act, in supply of power to
his industrial estate. In fact, his main
case is that he had the legal authority for
his action, which we have not accepted.
The Commission, therefore, feels that
there is no need for another opportunity
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being given to the applicant of being
heard in the matter. The Commission
directs that the applicant pay a penalty of
Rs. One lakh for contravention of the
provisions of the Act aforementioned.
The amount shall be deposited with the
Secretary of the Commission within seven
days of this order."
8. Aggrieved by this order M/s Jindal Steel and Power
Limited \026 appellant in C.A.No.4529 of 2006 also filed appeal
No.27 of 2006 before the Tribunal.
9. The ground taken in the appeal was that Jindal
Power does not require the license for supply of electricity as
in terms of Section 10(2) of the Act as a generating company, it
is competent to supply electricity to any person without using
the transmission lines of the Electricity Board. After
considering the ground of appeal, the Tribunal framed the
following issues:-
1. Whether Jindal Power was licensed to
distribute electricity at any time?
Without securing a license is it
permissible for Jindal Power to
distribute Power?
2. Whether Jindal Power could claim
that it is a deemed licensee entitled to
distribute power after coming into
force of The Electricity Act, 2003?
10. Mr. Shanti Bhushan, learned senior counsel, has
taken us through the entire judgment of the Tribunal but the
questions so framed were not at all addressed particularly the
application of Section 10(2) of the Act.
11. It is in these circumstances, learned senior
counsels, appearing for the respective appellants, contended
that this is eminently a fit case where this Court should set
aside the order of the Tribunal and the matter be remitted to
the Tribunal for fresh decision after considering all the
grounds raised in the respective appeals. In the facts as
alluded above we would also think so.
12. We may also hasten to note that the appeal under
Section 111 before the Tribunal is in the nature of first appeal.
The Tribunal, therefore, must examine the entire grounds of
appeal and record its reasons on each ground while disposing
of the appeal.
13. Accordingly, these appeals are allowed. The order
dated 11.5.2006 passed in appeals are set aside. The appeals
are restored to the file of the Tribunal. The Tribunal shall
consider each ground in appeals and dispose of the appeals in
accordance with law. We make it clear that we have not
expressed any opinion on the merit of the case whatsoever.
14. Having regard the question of public importance of
far reaching consequences involved in these appeals, the
Chairman of the Tribunal may consider for constituting an
appropriate bench for hearing the appeals. With the aforesaid
directions/observations these appeals are allowed. No costs.