Cesc Ltd. Vs.
Gajendra Haldea & Ors.  INSC 710 (9 April 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 333 OF 2007 CESC Ltd.
..Appellant Versus Gajendra Haldea and Ors. ..Respondents
Dr. ARIJIT PASAYAT,
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
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 that respondent-Gajendra
Haldea cannot be treated as a person aggrieved under the Act.
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.
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 in
such form, verified in such manner and be accompanied by such fee as may be
Provided that the
Appellate Tribunal may entertain an appeal after the expiry of the said period
of forty-five days if it 3 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
(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
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
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
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.
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 failure continues after contravention of the first such
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."
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.
(Dr. ARIJIT PASAYAT)
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