WEST BENGAL STATE ELECTRICITY BOARDversusGAJENDRA HALDEA AND ORS.

                      [2009) 5 S.C.R. 838


A         WEST BENGAL STATE ELECTRICITY BOARD
                               v.                                     •
               GAJENDRA HALDEA AND ORS.
                (Civil Appeal No. 369 of 2007)
                          APRIL 09, 2009
B
           [DR. ARIJIT PASAYAT AND ASOK KUMAR
                        GANGULY, JJ.]

       Electricity Act, 2003 - s. 121 - Power of appellate tribunal
c - Exercise of - Order of appellate tribunal directing the
  Regulatory Commissions to fix trade margins invoking ss. 60
  and 66 - Maintainability of - Held: In view of Grid Corporation's
  case holding that the respondent could not be treated as a
  'person aggrieved' under the Act, order of tribunal not
D maintainable and set aside.
         Grid Corporation of Orissa Ltd. v. Gajendra Haldea and
    Ors. 2008 (11) SCALE 313, relied on.

       CIVIL APPELLATE JURISDICTION : Civil Appeal No. 369
E of 2007.
         From the Judgment & Order dated 22.12.2006 of the
    Appellate Tribunal for Electricity in Exercise of Power under
    Section 121 of the Electricity Act, 2003.
F      Shanti Bhushan, M.G. Ramachandran, H.K. Puri, Sanjeev
  Kumar, Avinash Menon, Vishal Gupta, Kumar Mihir (for Khaitan
  & Co.) Hemantika Wahi, Mamta Tushir, Somnath Padhan, Ugra
  Shankar Prasad, AK. Ganeshan, S. Shashtri, K.V. Mohan,
  Pratik Dham, C.K. Rai, 0. Julis Regmei, Sridhar Potaraju, Raj
G Kumar Mehta, U. Sharma and Richa Srivastava (for Gopal
  Jain), lndu Sharma for the appearing parties.

        The Judgment of the Court was delivered by

H                                838
                WEST BENGAL STATE ELECTRICITY BOARD v.                   839
                      GAJENDRA HALDEA AND ORS.
    _,}.

                  DR. ARIJIT PASA YAT, J. 1. Challenge in this appeal is A
             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').
                                                                                 B
                  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
             margins as if it involved tariff determination. Stand of the c
             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 D
            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
            under Section 121 of the Act. It was pointed out that the E
            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 F
            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
            that respondent-Gajendra Haldea cannot be treated as a
            person aggrieved under the Act.                                      G
                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.
                                                                                H
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    840           SUPREME COURT REPORTS                  [2009] 5 S.C.R.


A       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
          aggrieved by an order made by an adjudicating officer
          under this Act (except under section 127) or an order made
8
          by the Appropriate Commission under this Act may prefer
          an appeal to the Appellate Tribunal for Electricity:

                Provided that any person appealing against the
          order of the adjudicating officer levying any penalty shall,
c         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
          penalty would cause undue hardship to such person, it may
D         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
          a period of forty five days from the date on which a copy
E         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:

F                  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.

          (3) On receipt of an appeal under sub-section (1 ), the
G         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.

H
                                                                                   i-

                                                                                   •c
                WEST BENGAL STATE ELECTRICITY BOARD v.         841
             GAJENDRA HALDEA AND ORS. [DR. ARIJIT PASAYAT, J.)

                 (4) The Appellate Tribunal shall send a copy of every order A
                 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
                                                                               B
                 sub-section (1) shall be dealt with by it as expeditiously as
                 possible and endeavour shall be made by it to dispose of
                 the appeal finally within one hundred and eighty days from
                 the date of receipt of the appeal:

                        Provided that where any appeal could not be             c
                 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.
         ~
                                                                         D
                 (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
                 otherwise, call for the records of such proceedings and
                                                                         E
                 make such order in the case as it thinks fit."

                 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 F
                 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
                 the prayer for refund was not being pressed.                   G
                 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        H
"1
.,
     842            SUPREME COURT REPORTS               [2009] 5 S.C.R.

.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.

     N.J.                                              Appeal allowed-