REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2050   OF 2007

Central Electricity Regulatory Commission ..Appellant

Versus

Gajendra Haldea and Ors.  ..Respondents

J U D G M E N T

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’).

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

appellant  is  that  only  appropriate  Regulatory  Commission  can  invoke

provisions of Section 60 upon arriving at a finding that a particular licensee

or generator had conducted himself in the specified manner which has an

adverse effect on competition in the electricity industry.  According to the

appellant the Tribunal issued directions on assumptions and presumptions

without any adjudication on tests  laid down in Section 60 of the Act.  In

essence, the stand is that the Tribunal is not empowered to determine tariff

in exercise of its  revisional  supervisory powers under Section 121 of the

Act. It was pointed out that the exercise of power under Section 121 of the

Act  was  not  permissible  because  respondent  No.1-Gajendra  Haldea  had

neither  initiated  any  proceedings  before  the  concerned  Regulatory

Commission  and  had  also  not  made  any  grievance  relating  to  excessive

exercise or non exercise  of  jurisdiction by such Regulatory Commission.

Strong reliance is placed on a decision of this Court in Grid Corporation of

Orissa Ltd. v.  Gajendra Haldea and Ors.  (2008 (11) SCALE 313) holding

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that  respondent-Gajendra Haldea 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.  

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 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, 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 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 of the order  made  by  the  adjudicating  officer  or  the  Appropriate Commission is received by the aggrieved person and it shall be

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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 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  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 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 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 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 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.”

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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-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.        

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 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.

“142.  Punishment  for  non-compliance  of directions by Appropriate Commission.-In 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  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 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 during  which the

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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.”  

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.   

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, April 09, 2009

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