Supreme Court of India
CENTRAL ELECTRICITY REGULATORY COMMISSIONversusGAJENDRA HALDEA AND ORS.
- Citation
- 2009 INSC 477
- Decided
- 9 April 2009
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
The Appellate Tribunal exceeded its jurisdiction; it cannot direct Regulatory Commissions to fix trading margins when the appellant is not an aggrieved person under Sections 121 and 142 of the Electricity Act, 2003.
Summary
The appeal challenged an order of the Appellate Tribunal for Electricity directing all Electricity Regulatory Commissions to fix trading margins, which the appellant argued amounted to tariff determination beyond the Tribunal's power under Section 121 of the Electricity Act, 2003. The appellant, Gajendra Haldia, had not initiated any proceeding before the concerned Regulatory Commission nor lodged any grievance, raising the question of whether he could be deemed an "aggrieved person" under Sections 121 and 142. The Court examined the scope of Sections 60, 66, 121, 142 and the procedural requirements of Section 111 of the Act, and relied on the earlier decision in Grid Corporation of Orissa Ltd. v. Gajendra Haldia (2008) 11 SCALE 313. It held that a person who has not approached the appropriate Commission cannot invoke the Tribunal’s revisional powers to compel the Commission to fix trading margins. Consequently, the Tribunal’s order was set aside and the appeal was allowed.
Issues considered
- Whether a person who has not initiated any proceeding before the appropriate Electricity Regulatory Commission can be considered an "aggrieved person" under Sections 121 and 142 of the Electricity Act, 2003.
- Whether the Appellate Tribunal for Electricity has jurisdiction to direct Regulatory Commissions to fix trading margins, i.e., determine tariff for trading, under its revisional powers.
- Interpretation of Sections 60, 66, 121, 142 and 111 of the Electricity Act, 2003 in the context of tariff determination and appellate jurisdiction.
Legislation cited
- Electricity Act, 2003s. 111, s. 121, s. 125, s. 142, s. 60, s. 66
Subjects
Electricity Act 2003tariff determinationtrading marginsAppellate Tribunal jurisdictionaggrieved personRegulatory Commissionrevisional powers
Judgment
[2009] 5 S.C.R. 821
CENTRAL ELECTRICITY REGULATORY COMMISSION A
II.
GAJENDRA HALDEA AND ORS.
(Civil Appeal No. 2050 of 2007)
APRIL 9, 2009
8
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]
Electricity Act, 2003: Power of Tribunal to determine tariff
for trading - Scope - Held: Respondent neither initiated any C
proceeding before the concerned Regulatory Commission
nor made any grievance relating to excessive exercise or non-
ex ercise of jurisdiction by Regulatory Commission - Bare
reading of ss.121 and 142 shows that those provisions were
not applicable - Order of tribunal directing Regulatory D
Commissions to fix trading margins cannot be maintained.
Grid Corporation of Orissa Ltd. v. Gajendra Haldia and
Ors. (2008) 11 SCALE 313, relied on.
Case Law Reference: E
(2008) 11 SCALE 313 relied on Para 2
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2050 of 2007.
F
From the Judgment & Order dated 22.12.2006 of the
Appellate Tribunal for Electricity in Petition No. 1/2005 and I.A.
Nos.1 & 32 of 2006.
V.R. Reddy, U.U. Lalit Shanti Bhushan, M.G. G
Ramachandran, R. Chandrachud, R. Joseph, H.K. Puri, P.
Narasimhan, Sridhar Potaraju, R. Joseph, Pradeep Misra,
Suraj Singh, Sanjeev Kumar, Avinash Menon, Vishal Gupta
Kumar Mihir (M/s. for Khaitan & Co.), Manish Singhvi, D.K.
821 H
822 SUPREME COURT REPORTS [2009] 5 S.C.R.
A Sinha, Sandeep Bajaj, Hemantika Wahi, Mamta Tushit,
Somnath Padhan, H. Wahi, Fox Mandal & Co. Ugra Shankar
Prasad, AK. Ganeshan, S. Shashtri, K.V. Mohan, Jagjit Singh
Chhabra, Pratik Dham, C.K. Rai, D. Julis Regmej, Sridhar
Potarju, Raj Kumar Mehta, U. Sharma, Nikhil Nayyar, TVS
8 Raghvendra Sreyas, Ambuj Agrawal, Suresh Chandra Tripathy,
Amit Kapur, Poonam Verma, Anupam Verma, A. Guneshwar
Sharma Shrestha Verma, Vibha Datta Makhija, Nidhi Minocha,
Ruchi G. Narula, Vivek Kishore, Rakesh K. Sharma, Pradeep
Misra, Amit Kumar, P. Nedumaran, Shibashish Misra, Ashiesh
c Kumar, A.S. Bhasme, Sharmila Upadhyay, G. Umapathy, Vibha
Tiwari, Rakesh K. Sharma, Richa Srivastava (for Gopal Jain)
and lndu Sharma for the appearing parties.
The Judgment of the Court was delivered by
D 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').
E
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
F 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
G ·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
H
CENTRAL ELECTRICITY REGULATORY COMMISSION v. 823
_)
GAJENDRA HALDEA AND ORS. [DR. ARIJIT PASAYAT, J.]
under Section 121 of the Act. It was pointed out that the A
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 B
such Regulatory Commission. Strong reliance is placed on a
decision of this Court in Grid Corporation of Orissa Ltd. v.
Gajendra Ha/dea and Ors. (2008 (11) SCALE 313) holding
that respondent-Gajendra Haldea cannot be treated as a
person aggrieved under the Act. c
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 D
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
E
by the Appropriate Commission under this Act may prefer
an appeal to the Appellate Tribunal for Electridty:
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: F
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 G
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 H
824 SUPREME COURT REPORTS (2009] 5 S.C.R.
A Appropriate Commission is received by the aggrieved
person and tt shall be 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
B
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
c 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
D 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
E 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
F 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
G 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."
H
CENTRAL ELECTRICITY REGULATORY COMMISSION v. 825
GAJENDRA HALDEA AND ORS. [DR. ARIJIT PASAYAT, J.]
5. In Grid Corporation's case (supra) it was inter-alia A
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
B
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 ere not c
applicable.
"121. Power of Appellate Tribunal- The Appellate
)
Tribunal may, after hearing the Appropriate
Commission or other interested party, if any, from D
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 E
by Appropriate Commission.-ln 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 F
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 G
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 H
826 SUPREME COURT REPORTS [2009] 5 S.C.R.
A during which the 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."
B
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.
c .
D.G. Appeal allowed.
..
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