Supreme Court of India
WEST BENGAL ELECTRICITY REGULATORY COMMISSIONversusGAJENDRA HALDEA & ORS.
- Citation
- 2009 INSC 478
- Decided
- 9 April 2009
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
The Appellate Tribunal cannot exercise its revisional supervisory powers under Section 121 where the respondent is not a person aggrieved, rendering its order invalid.
Summary
The West Bengal Electricity Regulatory Commission appealed against an order of the Appellate Tribunal for Electricity that, invoking Sections 60 and 66 of the Electricity Act, 2003, directed all regulatory commissions to fix trading margins as if they were tariff determinations. The Commission contended that the Tribunal lacked authority to exercise revisional supervisory powers under Section 121 and that the respondent, Gajendra Haldea, was not a "person aggrieved" within the meaning of the Act. The respondent argued that the precedent in Grid Corporation of Orissa Ltd. v. Gajendra Haldea was inapplicable. The Supreme Court examined the definition of a person aggrieved under Section 111 and the scope of Section 121, relying on the earlier Grid Corporation decision. It held that Haldea could not be treated as a person aggrieved and that the Tribunal could not use its Section 121 powers to interfere with the Commission’s tariff functions. Consequently, the Tribunal’s order was set aside and the appeal was allowed without costs.
Issues considered
- Whether a person who has not initiated proceedings before the appropriate regulatory commission can be deemed a 'person aggrieved' under the Electricity Act, 2003 for the purpose of filing an appeal.
- Whether the Appellate Tribunal for Electricity can exercise its revisional supervisory powers under Section 121 to direct regulatory commissions to fix trading margins, effectively determining tariff.
- Whether Sections 60 and 66 can be invoked by the Tribunal to treat trading margin determination as a tariff matter.
Legislation cited
- Electricity Act, 2003s. 111, s. 121, s. 125, s. 142, s. 60, s. 66
Subjects
Electricity Act 2003Tariff determinationRevisional supervisory powersAppellate Tribunal for ElectricityPerson aggrievedSection 121Section 60Section 66Regulatory commission
Judgment
[2009] 5 S.C.R. 827
_)
WEST BENGAL ELECTRICITY REGULATORY A
COMMISSION
. v.
GAJENDRA HALDEA & ORS.
(Civil Appeal No. 275 of 2007)
B
APRIL 9, 2009
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]
Electricity Act, 2003 - s. 121 - Appeal against order C
passed by Electricity Regulatory Commission - Exercise of
revisional supervisory powers by Appellate Tribunal for
Electricity uls.121- Held: Was not permissible as respondent
could not be treated as a person aggrieved under the Act.
D
Grid Corporation of Orissa Ltd. v. Gajendra Haldea & Ors.
(2008) 11 SCALE 313, relied on.
Case Law Reference:
(2008) 11 SCALE 313 relied on Para 2 E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 275
of 2007.
From the Judgment & Order dated 22.12.2006 of the
Appellate Tribunal for Electricity under Section 121 of the F
Electricity Act, 2003.
Shanti Bhushan, M.G. Ramachandran, H.K. Puri, Sanjeev
Kumar, Avinash Menon, Vishal Gupta, Kumar Mihir (for M/s.
Khaitan & Co.) Hemantika Wahi, Mamta Tushir, Somnath
Padhan, Ugra Shankar Prasad, AK. Ganeshan, S. Shashtri, G
K.V. Mohan, Pratik Dham, C.K. Rai, D. Julis Regmei, Sridhar
• Potaraju, Raj Kumar Mehta, U. Sharma, Suresh Chandra
Tripathy, Richa Srivastava (for Gopal Jain) and lndu Sharma
827 H
'-
828 SUPREME COURT REPORTS [2009] 5 S.C.R.
'-
A for the appearing parties.
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, I-
B 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
c 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
D 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
E
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
F 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
G decision of this Court in Grid Corporation of Orissa Ltd. v.
Gajendra Haldea and Ors. (2008 (11) SCALE 313) holding
that respondent-Gajendra Haldea cannot be treated as a
person aggrieved under the Act. ..
H 3. Respondent No.1 on the other hand supported the
_,.
.,
WEST BENGAL ELECTRICITY REGULATORY v. 829
,) GAJENDRA HALDEA & ORS. [DR. ARIJIT PASAYAT, J.]
judgment and submitted that Grid Corporation's case (supra) A
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 B
aggrieved by an order made by an adjudicating officer
under this Act (except under section 127) or a.n order made
by the Appropriate Commission under this Act may prefer
an appeal to the Appellate Tribunal for Electricity:
c
" 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 D
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.
E
(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 such manner F
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
G
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 H
,.,,
830 SUPREME COURT REPORTS [2009] 5 S.C.R.
'-
A 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.
B
(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
c 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
D 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
E 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:
F
"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
G 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.
•,
-
H
WEST BENGAL ELECTRICITY REGULATORY v. 831
GAJENDRA HALDEA & ORS. [DR. ARIJIT PASAYAT, J.]
"121. Power of Appellate Tribunal- The Appellate A
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 B
function under this Act.
"142. Punishment for non-compliance of directions
by Appropriate Commission.-ln case any
complaint is filed before the Appropriate
Commission by any person or if that Commission C
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 D
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 E
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."
F
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 G
is set aside. The appeal is allowed without any order as to
costs.
B.B.B. Appeal allowed.
H
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