2021 (6) TMI 1146 - HC - Indian Laws

Prayer for vacation/modification and/or alteration of the interim order of stay passed on 19.11.2020 - fixation of tariff vis-a-vis entitlement as per the PPA - power to adjudicate and/or to refer any dispute for arbitration - Section 86(1)(f) of Electricity Act, 2003 - It is submitted that as a matter of abundant caution, the respondent no. 2 had approached this Court seeking permission to refer the matter to arbitration, which was permitted by this Court by the order dated 08.03.2017. In light of the order dated 08.03.2017 passed by the coordinate Bench having attained finality whether and any interference with the impugned orders would have the effect of nullifying the said order? - HELD THAT - There is nothing on record which shows that this Court had previously been called upon in W.P. (C) 4148/2016 and I.A. (C) 1784/2016 to decide whether the exercise of power under Section 86(1)(f) of the Electricity Act, 2003 was a adjudicatory function. Thus, in this case, the question of jurisdiction has been raised. Accordingly, the Court is of the considered opinion that as jurisdiction cannot be conferred by consent, notwithstanding that there was no objection by the petitioner when orders dated 20.07.2016 and 08.03.2017 were passed, notwithstanding that the said orders had attained finality, the question of jurisdiction can be entertained in this writ petition. Resultantly, the Court is of the considered opinion that interference, if any, with the impugned orders passed by the respondent no. 2 would not have the effect of nullifying the previous orders dated 20.07.2016 and 08.03.2017, as appointment or the Arbitral Tribunal, and rejection of petition for condonation of delay and resultant dismissal of the review petition were not the subject matter of challenge in the previous writ petition. The question is answered in the negative and against the respondent no. 1 by holding that the instant order is not found to nullify the order dated 20.07.2016 passed in W.P. (C) 4148/2016 and order dated 08.03.2017 passed in I.A. (C) No. 1784/2016 in any manner whatsoever. Whether the writ petition is barred under the principles of waiver, estoppel and acquiescence? - HELD THAT - When orders dated 21.09.2018 and 06.10.2018 were passed by the respondent no. 2 Commission, the Supreme Court of India had already interpreted the scope of Section 86(1)(f) of the Electricity Act, 2003 in the case of Utility Users' Welfare Association 2018 (4) TMI 1945 - SUPREME COURT , that while exercising power under the said provision, the Commission was performing judicial function. Therefore, the petitioner has been able to demonstrate that in paragraph 116 of the case of Utility Users' Welfare Association - it has been held in the said case that the absence of a member having knowledge of law would make the composition of the State Commission such as would make it incapable of performing the functions under Section 86(1)(f) of the said Act. Under such circumstances, the Court is inclined to accept the submissions made by the learned counsel for the petitioner that in the light of the decision in the case of Utility Users' Welfare Association, the previous order dated 20.07.2016 passed in W.P. (C) 4148/2016 and order dated 08.03.2017 passed in I.A. (C) 1784/2016 would not constitute a binding precedent when orders dated 21.09.2018 and 06.10.2018 were passed by the respondent no. 2 Commission - The question is answered in the negative and in favour of the petitioner that the present writ petition is not barred under the principles of waiver, estoppel and acquiescence. Whether the delay in making the challenge in fatal to the maintainability of the writ petition? - HELD THAT - As the orders dated 21.09.2018 and 06.10.2018, suffer from the vice of coram non judice, the said orders are non est and therefore, under the facts unique to this case, the belated challenge by way of this writ petition is not found to be fatal to the instant writ petition. Whether any adjudicatory process was involved in passing of the orders dated 21.09.2018 and 06.10.2018 by the respondent no. 2 Commission? - Whether the said two orders dated 21.09.2018 and 06.10.2018 along with the subsequent order dated 11.02.2020 passed by the respondent no. 2 Commission suffers from any jurisdictional error and warrants interference? - HELD THAT - The Court is inclined to hold that adjudicatory process was indeed involved in passing of the orders dated 21.09.2018, 06.10.2018 and 11.02.2020 by the respondent no. 2 Commission. However, as there was no Judicial Member in the respondent no. 2 Commission, the said orders are found to be vitiated by principle of coram non judice - the said two orders dated 21.09.2018 and 06.10.2018 along with the subsequent order dated 11.02.2020 passed by the respondent no. 2 Commission suffers from any jurisdictional error and warrants interference by setting aside and quashing the said two orders. Application disposed off.

Summary

Issues Involved:
1. Validity of the orders dated 21.09.2018 and 06.10.2018 passed by the Assam Electricity Regulatory Commission.
2. Whether the writ petition is barred under the principles of waiver, estoppel, and acquiescence.
3. Whether the delay in challenging the orders is fatal to the maintainability of the writ petition.
4. Whether the orders dated 21.09.2018 and 06.10.2018 involved an adjudicatory process.
5. Whether the orders dated 21.09.2018, 06.10.2018, and 11.02.2020 suffer from jurisdictional errors.

Detailed Analysis:

1. Validity of the Orders Dated 21.09.2018 and 06.10.2018:
The petitioner challenged the orders passed by the Assam Electricity Regulatory Commission (respondent no. 2) referring the dispute to arbitration. The court examined the previous orders dated 20.07.2016 and 08.03.2017, noting that these orders did not address whether the referral to arbitration under Section 86(1)(f) of the Electricity Act, 2003, was a judicial function. The court concluded that the question of jurisdiction can be raised at any stage and that interference with the impugned orders would not nullify the previous orders. Thus, the orders dated 21.09.2018 and 06.10.2018 were found to be invalid as they were passed without a Judicial Member, contrary to the Supreme Court's ruling in Utility Users' Welfare Association, which mandates the presence of a Judicial Member for adjudicatory functions under Section 86(1)(f).

2. Principles of Waiver, Estoppel, and Acquiescence:
The court noted that the petitioner had not objected to the referral to arbitration initially and had participated in the proceedings before the Arbitral Tribunal. However, the court held that jurisdiction cannot be conferred by consent, and the question of jurisdiction can be entertained despite the petitioner's participation. Therefore, the writ petition was not barred under the principles of waiver, estoppel, and acquiescence.

3. Delay in Challenging the Orders:
The court found that the delay in challenging the orders was not fatal to the maintainability of the writ petition. It was determined that the orders dated 21.09.2018 and 06.10.2018 were passed without a Judicial Member, making them coram non judice (without jurisdiction). Consequently, the belated challenge was justified, and the writ petition was maintainable.

4. Adjudicatory Process Involved in the Orders:
The court concluded that the orders dated 21.09.2018 and 06.10.2018 involved an adjudicatory process. The Supreme Court's interpretation in Utility Users' Welfare Association clarified that the exercise of power under Section 86(1)(f) of the Electricity Act, 2003, is a judicial function. Therefore, the absence of a Judicial Member rendered the orders invalid.

5. Jurisdictional Errors in the Orders:
The court held that the orders dated 21.09.2018, 06.10.2018, and 11.02.2020 suffered from jurisdictional errors. The respondent no. 2 Commission did not have a Judicial Member when these orders were passed, violating the requirement for adjudicatory functions under Section 86(1)(f). As a result, these orders were set aside and quashed.

Conclusion:
The court set aside the orders dated 21.09.2018 and 06.10.2018 passed by the Assam Electricity Regulatory Commission, referring the matter to arbitration. The subsequent order dated 11.02.2020 was also rendered infructuous. The court allowed the respondent no. 1 to renew its prayer before the Commission for referring the matter to arbitration and directed the Commission to expedite the adjudication of the dispute, considering the long delay since 2010.