2018 (5) TMI 1998 - Commission - Indian Laws

Correct legal position on quorum for hearing the review petition - HELD THAT - From the provisions of the Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 (CBR), it is evident that proceedings before the Commission include proceedings of all nature that the Commission may hold in discharge of its functions under the Act which includes petitions for review of its own decisions, directions and orders. Further, the quorum for the proceedings before the Commission is two which means that no proceedings can take place without the presence of at least two members including ex-officio member of the Commission. However, as regards the review petition, only timeline for filing of petitions for review and disposal of such petitions has been indicated. The CBR is silent about the quorum for hearing the review petitions i.e. whether the review petitions shall be heard by lesser number of members than those who heard the main petition or what should be the quorum if any of the Members including Chairperson retires before the review petition is filed or during the course of the proceedings of the review petition. The general principle as per the CPC is that a review petition must always be heard by the same Court/Bench. However, there are situations in which this is not possible particularly in the present case where the Chairperson of the Hon'ble Commission who signed the orders in the main petitions is unavailable due to reason of superannuation. For the said situation, Order 47 Rule 5 provides that if a judge or judges or any one of the judges who passed the decree or made the order, a review of which is applied for, such judge or judges or any of them shall hear the review application, and no other judge or judges of the court shall hear the same, unless the judge or judges is not or are not precluded from absence or other cause for a period of six months next after the decree or order is made. The Commission shall be guided by the principles given in the provisions of Section 114 of CPC and Order 47 thereunder while dealing with the review petitions - If the members constituting the quorum which heard and passed the order in the main petition are available, those members only shall hear and issue order in the review petition. No other member shall be associated at the review stage. The review petitions shall be listed before the appropriate quorums.

Summary

Issues Involved:
1. Quorum for hearing review petitions.
2. Applicability of the Code of Civil Procedure (CPC) principles to the Commission's proceedings.
3. Doctrine of necessity in the context of unavailable judges.
4. Interpretation of relevant statutory provisions and regulations.

Issue-wise Detailed Analysis:

1. Quorum for Hearing Review Petitions:
The central issue was whether a review petition could be heard by a bench with fewer members than the original bench that passed the order. The Commission highlighted that the quorum for proceedings is generally two members, but the specific quorum for review petitions was not explicitly mentioned in the Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 (CBR).

2. Applicability of the Code of Civil Procedure (CPC) Principles:
The Commission examined the applicability of Order 47 Rule 5 of the CPC, which mandates that review petitions should be heard by the same judges who passed the original order. The Commission noted that while the CPC is not stricto sensu applicable, it can serve as a guiding principle. The Commission referred to judicial precedents, including the Supreme Court and Appellate Tribunal for Electricity, to support this view.

3. Doctrine of Necessity:
The Commission acknowledged situations where the original judges might be unavailable due to reasons like death, retirement, or other unforeseeable circumstances. The doctrine of necessity allows for a different judge to hear the review petition in such cases. This principle was supported by the Privy Council's decision in Maharaja Moheshur Sing vs. Bengal Government and the Supreme Court's ruling in State of Odisha & Others vs. Commissioner of Land Records and Settlement, Cuttack & Ors.

4. Interpretation of Relevant Statutory Provisions and Regulations:
The Commission analyzed various statutory provisions, including Sections 76 and 92 of the Electricity Act, 2003, and relevant provisions of the CBR. It concluded that while the CBR specifies the general quorum, it does not explicitly address the quorum for review petitions. The Commission also referred to Section 94 of the Electricity Act, which grants it powers similar to those of a civil court under the CPC, including the power to review its decisions.

Analysis and Decision:
The Commission decided the issue of quorum for hearing review petitions based on the following principles:

1. Guidance by CPC Principles: The Commission should be guided by the principles of Section 114 of CPC and Order 47 while dealing with review petitions.
2. Same Judges for Review: If the members who heard and passed the original order are available, they alone should hear the review petition.
3. Doctrine of Necessity: If the original members are unavailable due to death, superannuation, or absence for six months, the Chairperson should constitute a quorum of equal number of members, including the available members who passed the original order.
4. Vacancy in Commission: If it is impossible to constitute a quorum equal to the original quorum due to vacancies, the Chairperson should form a quorum with fewer members (minimum of two), including the available members who passed the original order.

The review petitions were directed to be listed before appropriate quorums based on these principles.