HIMACHAL PRADESH STATE ELECTRICITY REGULATORY COMMISSION AND ANOTHERversusHIMACHAL PRADESH STATE ELECTRICITY BOARD

                     [2013] 11 S.C.R. 915


       HIMACHAL PRADESH STATE ELECTRICITY                          A
       REGULATORY COMMISSION AND ANOTHER
                               v.
   HIMACHAL PRADESH STATE ELECTRICITY BOARD
           (Civil Appeal No. 6128 of 2009 )
                                                                   B
                     OCTOBER 03, 2013
         [ANIL R. DAVE AND DIPAK MISRA, JJ.]

     Electricity Regulatory Commission Act, 1998:
                                                                   c
     s. 27 - Appeal under - Maintainability of - After repeal
of the 1998 Act and enactment of Electricity Act, 2003- Held:
Maintainable, since the legislature never intended to take away
the vested right of appeal in the forum under the 1998 Act,
as the 2003 Act did not provide for transfer of pending cases      0
- Electricity Act, 2003 - s. 111.

       s. 22 - Determination of Tariff under - By regulatory
,Commission - Also issued certain directions as part of the
 taiiff order - The Commission imposed fine on Electricity
 Board for non-compliance of the directions - Propriety of -       E
 Held: The Commission was competent to issue the directions
 as all the directions were connected with the tariff fixation -
 However, it was not correct for the Commission to impose
 penalty on the Board, as the Board had substantially
 complied with the directions.                                     F
     Prospective Operation - Enactments dealing with vested
rights are primarily prospective, unless expressly or by
necessary intention or implication given effect retrospectively
- A right to appeal as well as forum is a vested right.            G

   Himachal Pradesh State Electricity Regulatory
Commission constituted under Electricity Regulatory
Commission Act, 1998, in exercise of its powers u/ss. 22
                              915                                  H
     916      SUPREME COURT REPORTS              [2013] 11 S.C.R.


A and 29 of the 1998 Act, determined the tariff applicable
  for electricity in the State and also issued certain
  direction.s as a part of the tariff order.

      In view of the complaints, the Commission issued
.8notice to the respondent-Board for non-compliance of the
  directions issued by the Commission. Respondent-
  Board, in its reply, questioned the jurisdiction and
  competence of the Commission to issue those directions.
  The Commission held the respondent-Board guilty of
C non-compliance of the directions and imposed penalty of
  Rs. 5000/- on the Board.

      The respondent-Board, challenging the order of the
  Commission, filed appeal before High Court u/s. 27 of the
  1998 Act. In the meantime 1998 Act was repealed and
D Electricity Act, 2003 was enacted. Pursuant thereto, the
  Commission took preliminary objection as to
  maintainability of the appeal by the High Court and
  contended that in view of s. 111 of the 2003 Act the
  appeal would lie to the Appellate Tribunal established
E under 2003 Act. High Court held that the appeal was
  maintainable because the· 2003 Act would have
  prospective operation. While deciding the appeal on
  merit, set aside the order passed by the Commission.
  Hence the present appeals.
F          Disposing of the appeals, the Court

       HELD: 1.1. It is a well settled proposition of law that
  enactments dealing with substantive rights are primarily
  prospective unless it is expressly or by necessary
G intention or implication given effect retrospectively. 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 retrospective. A right
H of appeal as well as forum is a vested right unless the
  H.P. STATE ELECT. REGULATORY COMM. v. H.P.            917
              STATE ELECT. BOARD

said right is taken away by the Legislature by an express     A
provi$ion in the Statute by necessary intention. [Para 25]
[937-H; 938-A·B]
     1.2. It is the admitted position that Legislature by
expressed stipulation in the new legislation has not 8
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
due to Banks and Financial Institution Act, 1993. No doubt C
right to appeal can b~ 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 D
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. [Para 26] [938-C-F]
                                                               E
     1.3. On reading of Section 185 of the 2003 Act in
entirety, it is difficult to say that even if Section 6 of the
General Clauses Act would apply, then also the same
does not save the forum of appeal. There is no contrary
intention that Section 6 of the General Clauses Act would F
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 G
and not a mere hope, or expectation of, or liberty to apply
for, acquiring right. [Para 28] [939-F-H]

    Ambalal Sarabhai Enterprises Ltd. vs. Amrit Lal and Co.
and Anr. (2001) 8 sec 397: 2001 (2) Suppl. SCR 195;
Ko/hapur Canesugar Works Ltd. vs. Union of India (2000) 2     H
    918     SUPREME COURT REPORTS             [2013] 11 S.C.R.


A   SCC 536: 2000 (1) $CR 518; M.S. Shivananda vs. Kamataka
    State Road Transport Corporation and Ors. (1980) 1 SCC
    149: 1980 (1) SCR 684; Vijay vs. State of Maharashtra and
    Ors. (2006) 6 sec 289: 2006 (4) Suppl. SCR 81 - relied on.

         1.4. Tested on the touchstone of doctrine of fairness,
8
    the legislature never intended to take away the vested
    right of appeal in the forum under the 1998 Act. Thus the
    conclusion of the High. Court that it had jurisdiction to
    hear the appeal is absolutely flawless. [Paras 30 and 31)
C   [940-C-D]
        Garikapati Veeraya vs. N. Subbiah Chaudhry and Ors.
    AIR 1957 SC 540: 1957 SCR 488 - followed.

         State of Punjab vs. Mohar Singh (1955) 1 SCR 893;
0   Brihan Maharashtra Sugarsyndicate Ltd. vs. Janardan
    Ramchandra Kulkarni and Ors. AIR 1960 SC 794: 1960 SCR
    85; Manphul Singh Sharma vs. Ahmedi Begum (Smt) (since
    deceased) through her alleged legal representative/
    successors (A) M.A. Khan (8) Delhi Wakf Board (1994) 5
E   SCC 465: 1994 (2) Suppl. SCR 495; Commissioner of
    Income Tax, Bangalore vs. R. Sharadamma (1996) 8 SCC
    388: 1996 (3) SCR 1200; Commissioner of Income Tax,
    Orissa vs. Dhadi Sahu 1994 Supp (1) SCC 257: 1992 (3)
    Suppl. SCR 168; Messrs. Hoosein Kasam Dada (India) Ltd.
    vs. The State of Madhya Pradesh and Ors. AIR 1953 SC 221:
F   1953 SCR 987 - relied on.

        Colonial Sugar Refining Company Ltd. vs. Irving 1905
    AC 369 - referred to.
G       2.1. The finding recorded by the High Court that the
    Commission has no authority to issue directions or to
    impose penalty as it had become functus officio is not
    correct. [Para 32) [940-E]
        2.2. The language employed in Section 22(1 )(d) has
H   to be understood in its proper connotative expanse. It
 H.P. STATE ELECT. REGULATORY COMM. v. H.P.          919
             STATE ELECT. BOARD

enables the State Commission to carry out the function A
for promoting competition, efficiency and economy in the
activities of the electricity industry to achieve the objects
and purposes of the Act. The State Commission under
Section 22(1)(d) was conferred power to address various
facets and there is no reason that the terms, namely, 8
"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 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 c
legislature would not have employed such wide
language in Section 22(1 )(d). 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 the directions 0
issued by the Commission are read in proper perspective,
the same really do not travel beyond the power conferred
under Section 22(1 )(d) of the 1998 Act. All of them can be
connected with the tariff fixation and with the associated
concepts, namely, purpose to promote competition, E
efficiency and economy in the activities of the electricity
industry regard being had to achieve the objects and
purposes of the Act. [Para 33) [941-E-H; 942-A-B]

     2.3. It is not inapposite to take note of the fact that
the Board had agreed to comply and submit the report. F
Though the Commission later on has found some fault
with the Board, yet it is factually found on a close perusal
of the explanation by the Board that there has been real
substantial compliance with the directions. In this factual
backdrop, it was not correct on the part of the G
Commission to impose penalty on the Board. However,
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 it is found that at present no notification is required H
    920      SUPREME COURT REPORTS                 (2013] 11 S.C.R.

A   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. It is clarified, that grant of liberty may not
B   be understood to have said that the Commission can take
    any action arising out of its.earlier order dated 29.10.2001
    or any subsequent orders passed thereon. [Para 34]
    [942-C-F]
                         Case Law Reference:
c
          (1955) 1 SCR 893           relied on            Para 18
          1960 SCR 85                relied on            Para 18
          1994 (2) Suppl. SCR 495 relied on               Para 18
D
          1996 (3) SCR 1200          relied on            Para 18
          1992 (3) Suppl. SCR 168 relied on               Para 18
          1953 SCR 987               relied on            Para 20
E         1957 SCR 488               followed             Para 21
          1905 AC 369                referred to          Para 21
          2001 (2) Suppl. SCR 195 relied on               Para 27

F         2000 (1) SCR 518           relied on            Para 27
          1980 (1) SCR 684           relied on            Para 28
          2006 (4) Suppl. SCR 81     relied on            Para 29
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
G   6128 of 2009.

        From the Judgment & Order dated 21.11.2007 of the High
    Court at Shimla in FAQ No. 493 of 2002.
                                   WITH
H
   H.P. STATE ELECT. REGULATORY COMM. v. H.P.                921    -
               STATE ELECT. BOARD

     C.A. Nos. 6129, 6130, 6131, 6132 & 6133 of 2009.               A

     Rana S. Biswas, Sunil Kumar Sharma, Matrugupta Mishra
(for Sharmila Upadhyay for the Appellants.

     Anand K. Ganeshan, K.V. Mohan for the Respondent.
                                                                    B
     The Judgment of the Court was delivered by

      DIPAK MISRA, J. 1. 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         c
 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      0
 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       E
from Civil Appeal No. 6128 of 2009 for the sake of
convenience.

     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 F
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 order dated 29.10.2001 determined the tariff
applicable for electricity in the State of Himachal Pradesh. G
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     H
    922          SUPREME COURT REPORTS               [2013) 11 S.C.R.


A                  capital projects of the Board.

          . (b)    Replacement of all dead and defective meters by
                   electronic meters from 31st March, 2002 onwards
                   and reporting the status, as on 31st December,
                   2001 by 31st March, 2002.
B
           (c)     To develop and implement a comprehensive public
                   interaction programme through Consultative
                   Committees, preparation, publication and
                   advertisement of material helpful to various
c                  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
D                  for approval of the commission and implement the
                   same by 31st March, 2002.

           (d)     Submission of plans, short term and long term, by
                   31st March, 2002, for rationalization of existing
                   manpower for improvements in efficiency through
E
                   scientific engineering resources management,
                   improving and updating the organization strategies
                   and systems and skills of human resources for
                   increased productivity. The Board in its affidavit of
                   3rd October, 2001 has agreed to comply and
F                  submit the above study by the above-mentioned
                   date.

           (e)     Submission of a plan by 31st March, 2002, for
                   reducing loss, both technical and non-technical,
G                  together with relevant load flow studies and details
                   of investment requirement to achieve the planned
                   reductions. The Commission also observed in its
                   interim order of 20th September, 2001 passed in
                   the course of public hearing that investments must
H                  aim at reducing the T & D losses and better quality
 H.P. STATE ELECT. REGULATORY COMM. v. H.P.                   923
     STATE ELECT. BOARD [DIPAK MISRA, J.]

              of supply and service to the consumers as it            A
              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 complete this study by      B
              31st March, 2002

      (f)    To do a comparison of the capital costs of Malana
             Plant with the capital costs of HPSEB Plants and
             submit a report on this by 31st March, 2002."
                                                                      c
     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 7.13. The
Commission in paragraphs 7.31 and 7.32 had further stated
as follows:-                                                          D

    "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             E
    December 31, 2001. Subsequent reports should be sent
    every quarter, providing the information required in
    columns 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       F
     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             G
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       H .
    924       SUPREME COURT REPORTS                   [2013] 11 S.C.R.


A   of jurisdiction and competence of the Commission to issue the
    aforesaid directions. The Commission while dealing with the
    same framed number 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
B   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.

         6. Being aggrieved by the aforesaid order, the Board
C   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 Acf')
    came into force. The 2003 Act was brought in to consolidate
D   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,
E   ensuring transparent policies regarding subsidies, promotion
    of efficient and environmentally benign policies, constitution of
    Central Electricity Authority, Regulatory Commissions and
    establishment of Appellate Tribunal and for matters connected
    therewith or incidental thereto.
F
        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 raised a preliminary
  objection about the maintainability of the appeals. It was
G 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
H note of the fact that the appeals were preferred under Section
 H.P. STATE ELECT. REGULATORY COMM. v. H.P.                925
     STATE ELECT. BOARD [DIPAK MISRA, J.]

27 of the 1998 Act and at that stage an appeal was                A
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 the 1998 Act could be        B
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 c
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 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) 0
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:-
                                                                   E
    "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 F
    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 G
    superintendence and control of the Board on the
    pretension of watching and protecting the larger interests
    of the Board and the consumers."

    As stated earlier, the aforesaid judgment and order are the   H
    926         SUPREME COURT REPORTS                [2013] 11 S.C.R.


A   subject matter of assail before us in these appeals.

         10. Mr. Jaideep Gupta, learned senior counsel,
    questioning the sustainability of the judgment of the High Court
    has raised the following submissions:-
B         (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
c                 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
D                 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
E                 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
F                 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
G                 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
H
  H.P. STATE ELECT. REGULATORY COMM. v. H.P.                927
      STATE ELECT. BOARD [DIPAK MISRA, J.]

             Himachal Pradesh but the High Court failed to          A
             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.

     11. Mr. Anand K. Ganesan, learned counsel appearing for        B
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      c
             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       D
             from any of the provisions of the new enact~ent.
     {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            E
             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
                                                                    F
             extinguish the said vested right and hence, the
             judgment and order passed by the High Court are
             impeccable.

     {iii}   The Commissio.n under the 1998 Act could not have
             issued directions inasmuch as the notification         G
             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   H
          928      SUPREME COURT REPORTS                 [2013) 11 S.C.R.


      A                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.
      B                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 complied with by the respondent
\                      and there being no willful and deliberate non-
      c                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
    ·D 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
      E         attributable to the conduct of Respondents I 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
      F         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.
     G          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 I Action taken reports on the
                fifteenth day of every month until compliance is made."
      H
  H.P. STATE ELECT. REGULATORY COMM. v. H.P.                  929
      STATE ELECT. BOARD [DIPAK MISRA, J.]
     13. By the time the order was passed by the Commission           A
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           8
     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.
                                                                      c
     (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.
                                                                      D
     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."

     14. It is not in dispute that when the appeals were preferred    E
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:-                                       F

     "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        G
     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    H
    930       SUPREME COURT REPORTS                    [2013] 11 S.C.R.


A   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
B
          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
c         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
D         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
E         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:

          Provided that the Appellate Tribunal may entertain an
          appeal after the expiry of the said period of forty-five days
F         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
G 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
H         provided in this Act, the Indian Electricity Act, 1910 (9 of
H.P. STATE ELECT. REGULATORY COMM. v. H.P.                931
    STATE ELECT. BOARD [DIPAK MISRA, J.]

  1910, the Electricity (Supply) Act, 1948 (54 of 1948) and       A
  the Electricity Regulatory Commissions Act, 1998 (14 of
  1998) are hereby repealed.

  (2) Notwithstanding such repeal, -

  (a) anything done or any action taken or purported to have      B
  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            C
  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.
                                                                  D
  (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;
                                                                  E
  (c) The Indian Electricity Rules, 1956 made under section
  37 of the Indian Electricity Act, 1910 (9of1910) 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       F
  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      G
  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.
                                                                  H
    932       SUPREME COURT REPORTS                [2013) 11 S.C.R.


A         (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.

B         (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
c         section 6 of the General Clauses Act, 1897 (10 of 1897),
          with regard to the effect of repeals."

       18. It is submitted by Mr. Jaideep Gupta, learned senior
  Counsel that when the 1998 Act has been repealed and a new
D 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
E 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. Mohar Singh\ Brihan
  Mahara.shtra Sugarsyndicate Ltd. v. Janardan Ramchandra
  Kulkarni and Others2, Manphul Singh Sharma v. Ahmedi
F Begum (Smt) (since deceased) through her alleged legal
  representative/successors (A) M.A. Khan (B) Delhi Wakf
  BoarcP, Commissioner of Income Tax, Bangalore v. R.
  Sharadamma 4 and Commissioner of Income Tax, Orissa v.
  Dhadi Sahu5.
G
    1.   (1955) 1 SCR 893.
    2.   AIR 1960 SC 794.
    3.   (1994) 5 sec 465.
    4.   (1996) 8 sec 388.
H 5.     1994 Supp (1) sec 257.
     H.P. STATE ELECT. REGULATORY COMM. v. H.P.                 933
         STATE ELECT. BOARD [DIPAK MISRA, J.]

       19. In Mohar Singh (supra), the Court has ruled thus:-           A

      . "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     B
        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.     C
        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.         D
        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     E
        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."

                                               [Underlining is ours]    F
     20. In Messrs. Hoosein Kasam Dada (India) Ltd. v. The
State of Madhya Pradesh and others, 6 this Court was
considering the effect of amendment of provisions of Central
Provinces and Berar Sales Tax Act. Section 22(2) prior to the
amendment of the Act stipulated that no appeal against an               G
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
6.    AIR 1953 sc·221.                                                  H
    934       SUPREME COURT REPORTS               [2013] 11 S.C.R.


A 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
B 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 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
c 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 superior
  tribunal becomes vested in a party when proceedings are first
o 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
E 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
F applying the amended provision preventing the exercise of that
  right.

      21. In this context, we may refer with profit to the
  Constitution Bench judgment in Garikapati Veeraya v. N.
  Subbiah Chaudhry and others. 7 In the said decision, the
G Constitution Bench referred to the leading authority of the privy
  council in Colonial Sugar Refining Company Ltd. v. lrving8.
  The Constitution Bench observed that the doctrine laid down
    7.   AIR 1957 SC 540.
H   8.   1905 AC 369.
  H.P. STATE ELECT. REGULATORY COMM. v. H.P.                   935
      STATE ELECT. BOARD [DIPAK MISRA, J.]

in the decision of the privy council in Colonial Sugar Refining        A
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         B
     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            C
     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        D
     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    E
     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        F
     are not to be held to act retrospectively unless a clear
     intention to that effect is manifested."

     22. Thereafter, the larger Bench referred to number of
·authorities and proceeded to cull out the principles as follows:-     G

      "23. From the decisions cited above the following
      principles clearly emerge:
           '
            (1) That the legal pursuit of a remedy, suit, appeal and
      second appeal are really but steps in a series of                H
    936       SUPREME COURT REPORTS                  [2013] 11 S.C.R.


A         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.
B               (iit) Th~ institution of the suit carries with it the
          implication that all rights of appea_I then in force are
          preserved to the parties thereto till the rest of the career
          of the suit.

c               - (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
D         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.

                (v) This vested right of appeal can be taken away
E         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 Council
  decision, three basic principles, namely, (i) the forum of appeal
F 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
G 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
H
 H.P. STATE ELECT. REGULATORY COMM. v. H.P.                     937
     STATE ELECT. BOARD [DIPAK MISRA, J.]

Court was entitled to hear the appeal under Article 135 of the          A
Constitution, and no 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      B
to that effect is manifested.

     24. In Dhadi Sahu (supra), it has been held thus:-

     "18. It may be stated at the outset that the general principle     C
     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       D
     law gets jurisdiction to try them.

     xxx   xxx                      xxx
     21. It is also true that no litigant has any vested right in the   E
     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
                                                                        F
      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."
                                                                        G
     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
                                                                        H
    938       SUPREME COURT REPORTS               [2013) 11 S.C.R.


A 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 retrospective. As has been
  stated in various authorities referred to hereinabove, a right of
B 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
c 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
0
  Tribunal Act, 1985 and Recovery of Debts 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
E 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 sufficient to
  accept the argument/contention of an implied transfer.
  Something more substantial or affirmative is required which is
F 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
G Enterprises Ltd. v. Amrit Lal & Co. and Another9 wherein the
  learned Judges referred to the opinion expressed in Kolhapur
  Canesugar Works Ltd. v. Union of lndia 10 and distinguishing

    9.   (2001) s sec 397.
H 10. (2000) 2 sec 536.
  H.P. STATE ELECT. REGULATORY COMM. v. H.P.                939
      STATE ELECT. BOARD [DIPAK MISRA, J.]

the same observed as follows:-                                      A

    "18. In Ko/hapur Canesugar Works Ltd. v. Union of India,
    this Court held: (SCC p. 551, para 37)

    "37. The position is well known that at common law, the
    normal effect of repealing a statute or deleting a provision    B
    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    C
    repealing statute deletes the provisions, it would mean
    they never existed 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.       D
    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."
                                                                    E
      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 F
Section 6 of the General Clauses Act would apply, then also
the same does not save the forum of appeal. We do not
perceive ariy contrary intention that Section 6 of the General
Clauses 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 G
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. Shivananda v. Karnataka State Road H
    940       SUPREME COURT REPORTS                   [2013) 11 S.C.R.


A   Transport Corporation and Others11).

       29. In this context, a passage from Vijay v. State of
    Maharashtra and Others12 is worth noting:-

          ".... It is now well settled that when a literal reading of the
B         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."
c
         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:
D
          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
E whether the finding recorded by the High Court that the
  Commission has no authority to issue directions or to 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
F 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
G for the purpose of compliance of the directions. It is submitted
  by Mr. Ganesan, learned counsel for the respondent, ffiat
  Section 22 occurring in Chapter V of the 1998 Act deals wi_th

    11. (1980) 1sec149.
H   12. c2006) 6 sec 289.
 H.P. STATE ELECT. REGULATORY COMM. v. H.P.                 941
     STATE ELECT. BOARD [DIPAK MISRA, J.]

powers and functions of the State Commission and for exercise A
of power of Board under 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 B
counsel appearing for the Commission, has submitted that
though no notification under Section 22(2) of the 1998 Act has
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           C
Section 22( 1)(d) of the 1998 Act. It reads as follows: -
    "22. Functions of State Commission. - (1) Subject to
    the provisions of Chapter Ill, the State Commission shall
    discharge the following functions, namely: -                    D
    )()()(   )()()(               )()()(

    (d) to promote competition, efficiency and economy in the
    activities of the electricity industry to achieve the objects
    and purposes of this Act."
                                                                    E
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 activities of the
electricity industry to achieve the objects and purposes of the F
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 G
22(1) of the 1998 Act the Commission had only the power to
fl)( 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 H
    942      SUPREME COURT REPORTS                   [2013) 11 S.C.R.


A   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
B   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 the
    electricity industry regard being had to achieve the objects and
    purposes of the Act.
C        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 substantial compliance with the
D   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
E   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,
F   our grant of liberty may not be understood to have said that the
    Commission can take any action arising 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
G   Act.
         35. The appeals stand disposed of in the above terms
    leaving the parties to bear their respective costs.
    K.K.T.                                     Appeals disposed of.
H