CESC LTD.versusGAJENDRA HALDEA AND ORS.

                      (2009] 5 S.C.R. 832


A                           CESC LTD.
                                 v.
                 GAJENDRA HALDEA AND ORS.
                  (Civil Appeal No. 333 of 2007)
                          APRIL 09, 2009
B
          [DR. ARIJIT PASAYAT AND ASOK KUMAR
                       GANGULY, JJ.]

        Electricity Act, 2003:
c
       ss. 60 and 121 -Appellate Tribunal for Electricity- Power
  of - Plea that Tribunal invoked s. 60 to direct all Regulatory
  Commissions to fix trading margins as if it involved tariff
  determination - Held: Order passed by Tribunal cannot be
D maintained and is set aside.
      The instant appeal was filed against the order of the
  Appellate Tribunal for Electricity. It was contended that in
  view of s. 60 of the Electricity Act, 2003, the Tribunal was
  not empowered to fix trading margins in respect of
E traders, intermediators etc. in exercise of its revisional
  supervisory powers u/s 121 of the Electricity Act, 2003. It
  was also submitted that neither respondent no.1 initiated
  any proceedings before the Regulatory Commission
  concerned nor did he make any grievance relating to
F excessive exercise/non-exercise of jurisdiction by such
  Regulatory Commission.

        Allowing the appeal, the Court

      Held: In view of the decision in Grid Corporation's*
G case, the order passed by the Tribunal cannot be
  maintained and the same is set aside. [Para 6] [837-8-C]
        Grid Corporation of Orissa Ltd. vs. Gajendra Haldea and

H                                832
           CESC LTD. v. GAJENDRA HALDEA AND ORS.                 833
_j


     Ors. 2008 (11) SCALE 313, relied on.                              A
                           Case Law Reference:
          2008 (11) SCALE 313         relied on            para 3
          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 333 B
     of 2007.
          From the Judgment & Order dated 22.12.2006 of the
     Appellate Tribunal for Electricity, New Delhi in Petition No. 1
     of 2005.
                                                                       c
          Khaitan & Co. for the Appellant.
          S. Potaraju, C.K. Rai, J. Raimei, G. Gamgmei, H.K. Puri,
     K.V. Mohafl, U.S. Prasad, lndu Sharma, H. Wahi and Mamta
     Tushir for the Respondent.
 )
                                                                       D
          The Judgment of the Court was delivered by
          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
                                                                       E
     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 F
     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 G
     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 H
    834           SUPREME COURT REPORTS               (2009) 5 S.C.R.


A 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 ur1:ler Section 121 of the Act was not
  permissible because respondent No.1-Gajendra Haldea had
B 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.
C Gajendra Haldea and Ors. (2008 (11) SCALE 313) holding
  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)
0
    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:

E         "111. Appeal to Appellate Tribuna/.-(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:
F               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
G         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.
H
          CESC LTD. v. GAJENDRA HALDEA AND ORS.                       835
     j             [DR. ARIJIT PASAYAT, J.]
           (2) Every appeal under sub-section (1) shall be filed within A
          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 such manner
          and be accompanied by such fee as may be prescribed: B

                   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.
                                                                              c
          (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
     .J
          aside the order appealed against.                          D

          (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.
                                                                              E
..        (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:                            F

                 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 G
          period.

          (6) The Appellate Tribunal may, for the purpose of
          examining the legality, propriety or correctness of
          Appropriate Commis!;ion under this Act, as the case may
          be, in relation to any proceeding, on its own motion or H
    836          SUPREME COURT REPORTS                [2009] 5 S.C.R.


A         otherwise, call for the records of such proceedings and
          make such order in the case as it thinks fit."

        5. In Grid Corporation's case (supra) it was inter-alia
    observed as follows:
B         "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
c         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.
D                "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
E                Commission for the performance of its statutory
                 function under this Act.                                  t-


                 "142. Punishment for non-compliance of directions
                 by Appropriate Commission.-ln case any
F                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
G                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
H
               CESC LTD. v. GAJENDRA HALDEA AND ORS.                   837
                        [DR. ARIJIT PASAYAT, J.]

                      rupees for each contravention and in case of a          A
                      continuing failure with an additional penalty which
                      may extend to six thousand rupees for every day
                      during which the failure continues after
                      contravention of the first such direction."
....;
                                                                              B
               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      C
        is set aside. The appeal is allowed without any order as to
        costs.

        R.P.                                             Appeal allowed.