PTC INDIA LTD.versusGAJENDRA HALDEA AND ORS.

                           [2009] 5 S.C.R. 815
    _;




                               PTC INDIA LTD.                          A
                                     v.
                      GAJENDRA HALDEA AND ORS.
                       (Civil Appeal No. 68 of 2007)
                               APRIL 09, 2009
                                                                       B
                [DR. ARIJIT PASAYAT AND ASOK KUMAR
                             GANGULY, JJ.]

             ELECTRICITY ACT, 2003:
                                                                       c
              ss. 60 and 121 -Appellate Tribunalfor 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
         maintained and is set aside.                                   D
             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
         traders, intermediators etc. in exercise of its revisional E
         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
         excessive exercise/non-exercise of jurisdiction by such F
         Regulatory Commission.

             Allowing the appeal, the Court

             HELD: In view of the decision in Grid Corporation's*
         case, the order passed by the Tribunal cannot be G
~        maintained and the same is set aside. [Para 6) (820-C-D]

             Grid Corporation of Orissa Ltd. v. Gajendra Haldea and

                                     815                               H
    816         SUPREME COURT REPORTS               [2009] 5 S.C.R.


A   Ors. 2008 (11) SCALE 313, relied on.
                          Case Law Reference:                               -
          2008 (11) SCALE 313         relied on            para 3

B        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 68
    of 2007.

         From the Judgment & Order dated 22.12.20Q6 of the
    Appellate Tribunal for Electricity, New Delhi in Petition No. 1
    of 2005.
c
      Shanti Bhsuhan, M.G. Ramachandran, H.K. Puri, Pratik
  Dham, C.K. Rai, D. Julis Regmei, Sridhar Potaraju, Sanjeev
  Kumar, Avinash Menon, Vishal Gupta, Kumar Mihir (M/s. for
  Khaitan & Co.) H. Wahi, Mamta Tushir, Somnath Padhan, Fox
D Mandal & Co., Ugra Shankar Prasad, A.K. Ganeshan, S.
  Shashtri, K.V. Mohan, Jagjit Singh Chhabra, Raj Kumar Mehta,
  U. Sharma, Amit Kapur, Poonam Verma, Anupam Verma, A.
  Guneshwar Sharma, Shrestha Verma, Richa Srivastava (for
  Gopal Jain), lndu Sharma for the appearing parties.
E         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
F   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
G 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
H
         )
                PTC INDIA LTD. v. GAJENDRA HALDEA AND ORS.                 817
                            [DR. ARIJIT PASAYAT, J.]

,.            a particular licensee or generator had conducted himself in the A
              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
             essence, the stand is that the Tribunal is not empowered to B
             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
             permissible because respondent No.1-Gajendra Haldea had
             neither initiated any proceedings before the concerned c
             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.
             Gajendra Haldea and Ors. (2008 (11) SCALE 313) holding
                                                                                   D
             that respondent-Gajendra Ha Idea 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)
             has no application to the facts of the case.                         E

                 4. In order to appreciate the rival submissions Section 111
             needs to be noted. The same reads as follows:

                 "111. Appeal to Appellate Tribunat.-(1) Any person
                 aggrieved by an order made by an adjudicating officer            F
                 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:

                       Provided that any person appealing against the G
                 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
                                                                                 H
    818           SUPREME COURT REPORTS                  [2009] 5 S.C.R.


A         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.

          (2) Every appeal under sub-section (1) shall be filed within
B
          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:
c
                   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.
D
          (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
          aside the order appealed against.
E
          (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.
F
          (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
G         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 writin{J for not disposing of the appeal within the said
H         period.
      PTC INDIA LTD. v. GAJENDRA HALDEA AND ORS.              819
J                 [DR. ARIJIT PASAYAT, J.]

        (6) The Appellate Tribunal may, for the purpose of A
        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."          B

        5. In Grid Corporation's case (supra) it was inter-alia
    observed as follows:

        "15. It is unnecessary to go into the question as to the
        nature of the transaction, because respondent No.1- C
        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
        the prayer for refund was not being pressed.
                                                                    D
        16. A bare reading of Sections 121 and 142 of the Act
        which read as follows shows that those provisions are not
        applicable.

               "121. Power of Appellate Tribunal- The Appellate
              Tribunal may, after hearing the Appropriate           E
              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
              function under this Act.                              F

              "142. Punishment for non-compliance of directions
              by Appropriate Commission.-ln case any
              complaint is filed before the Appropriate
              Cpmmission by any person or if that Commission G
              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 H
    820           SUPREME COURT REPORTS               [2009] 5 S.C.R.


A                 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
B                 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."

           17. Therefore, the Appellate Tribunal was wrong in
c          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) arid
D is set aside. The appeal is allowed without any order as to
  costs.

    R.P.                                              Appeal allowed.




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