9911796707
TMI Blog2008 (3) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... eement") with the Gujarat Electricity Board. Under the aforesaid agreement the parties agreed, inter alia, that out of the total generating capacity of 515MW electricity the appellant-company would allocate 300MW electricity to the Board and 215MW electricity to the Essar Group of Companies. Under Clause 11 of the agreement the parties agreed that in the event any dispute arose the same may be resolved by the parties by mutual agreement as envisaged by Clause 11(1) of the aforesaid agreement. In the event of failure to resolve the dispute by amicable settlement, the parties agreed that such dispute be submitted to arbitration vide Clause 11(2). 5. In the meantime, under the Gujarat Electricity Industry (Reorganization and Regulation) Act, 2003 published in the Gujarat Government Gazette on 12th May, 2003 the assets and liabilities of the Board were transferred to the appellant Nigam. 6. It appears that certain disputes had arisen between the parties mainly in connection with the allocation of power to the Essar Group of Companies. It is not in dispute that the respondent-company did not utilize its total generating capacity to generate 515MW electricity. It also did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having effect by virtue of this Act, rule or regulation shall have effect in so far as it is inconsistent with any other provisions of the Consumer Protection Act, 1986 (68 of 1986) or the Atomic Energy Act, 1962 (33 of 1962) or the Railways Act, 1989 (24 of 1989)." 11. Mr. K.K. Venugopal submitted that a joint reading of these provisions indicates that ordinarily the Act of 2003 will prevail over all other laws or instruments, but the said Act will have to give way only to the Consumer Protection Act, the Atomic Energy Act, or the Railways Act. In other words, except for the aforementioned three Acts, the Act of 2003 will prevail over all other laws and instruments. 12. Mr. K.K. Venugopal then invited our attention to Section 86(1) of the Act of 2003 which states : "86. Functions of State Commission (1) The State Commission shall discharge the following function, namely (a) determine the tariff for generation, supply, transmission and wheeling of electricity, wholesale, bulk or retail, as the case may be, within the State: Provided that where open access has been permitted to a category of consumers under section 42, the State Commission shall determine only the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r persons as the Appropriate Commission may nominate in that behalf on the application of either party; but in all other respects the arbitration shall be subject to the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996)." 15. Shri K.K. Venugopal also relied on Section 2(3) of the 1996 Act which states : "2(3) This part shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration." 16. Shri Venugopal submitted that Section 11 of the 1996 Act has no application because the Act of 2003 has provided for arbitration of disputes between licensees and generating companies by the Commission or its nominated arbitrator. Since the Electricity Act is a special law dealing with arbitrations of disputes between licensees and the generating companies, he submitted that the general provision in Section 11 of the Arbitration and Conciliation Act, 1996 will not apply for appointing an arbitrator for such disputes in view of the maxim Generalia specialibus non derogant (vide G.P. Singh's `Principles of Statutory Interpretation', 9th Edition, 2004 page 133). 17. Shri K.K. Venugopal submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rights and obligations of the Parties hereunder shall remain in full force and effect pending the award in such Arbitration proceedings. The award shall determine whether and when Termination of this Agreement, if relevant, shall become effective. The Arbitration shall be in accordance with the Indian Arbitration and Conciliation Ordinance, 1996 or such modifications or re-enactment thereof. 11.3 NUMBER OF ARBITRATORS The arbitral tribunal shall consist either (a) of sole Arbitrator mutually agreed upon or (b) of three (3) (Arbitrators One each to be chosen by each Party and third person to be selected by two Arbitrators so chosen before commencement of arbitration proceedings to act as an Umpire/third Arbitrator. 11.4 PLACE OF ARBITRATION The arbitration shall be conducted at Baroda. 11.5 FINALITY AND ENFORCEMENT OF AWARD The arbitral tribunal shall give reasoned decision or award which shall be final and binding upon the Parties. The Parties hereto agree that the arbitral award may be enforced against the Parties to the arbitration proceeding or their assets wherever they may be found and that a judgment upon the arbitral award may be entered in any Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be resolved by appointing an Arbitrator under Section 11 of the Act of 1996. The Nigam contended that only the State Commission can adjudicate the dispute under Section 86(1)(f) of the Act of 2003, or refer the matter to an arbitrator. 24. The main question before us is whether the application under Section 11 of the Act of 1996 is maintainable in view of the statutory specific provisions contained in the Electricity Act of 2003 providing for adjudication of disputes between the licensee and the generating companies. 25. In our opinion, the submission of Mr. K.K. Venugopal has to be accepted. 26. It may be noted that Section 86(1)(f) of the Act of 2003 is a special provision for adjudication of disputes between the licensee and the generating companies. Such disputes can be adjudicated upon either by the State Commission or the person or persons to whom it is referred for arbitration. In our opinion the word `and' in Section 86(1)(f) between the words 'generating companies' and `to refer any dispute for arbitration' means `or'. It is well settled that sometimes `and' can mean `or' and sometimes `or' can mean `and' (vide G.P. Singh's `Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pute itself and may refer it for arbitration by an arbitrator appointed by it. For example, the State Commission may be overburdened and may not have the time to decide certain disputes itself, and hence such cases can be referred to an arbitrator. Alternatively, the dispute may involve some highly technical point which even the State Commission may not have the expertise to decide, and such dispute in such a situation can be referred to an expert arbitrator. There may be various other considerations for which the State Commission may refer the dispute to an arbitrator instead of deciding it itself. Hence there is no violation of Article 14 of the Constitution of India. 31. We may now deal with the submission of Mr. Fali S. Nariman that in view of Section 175 of the Electricity Act, 2003, Section 11 of the Arbitration and Conciliation Act, 1996 is also available for arbitrating disputes between licensees and generating companies. 32. Section 175 of the Electricity Act, 2003 states that the provisions of the Act are in addition to and not in derogation of any other law. This would apparently imply that the Arbitration and Conciliation Act, 1996 will also apply to disputes such as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment of Sir John Edge, the then Chief Justice of Allahabad High Court in Beni Prasad vs. Hardai Devi, (1892) ILR 14 All 67 (FB), and some judgments by one of us (M. Katju, J.) there has been almost no utilization of these principles even in our own country. 38. It may be mentioned that the Mimansa Rules of Interpretation were our traditional principles of interpretation laid down by Jaimini, whose Sutras were explained by Shabar, Kumarila Bhatta, Prabhakar, etc. These Mimansa Principles were regularly used by our great jurists like Vijnaneshwara (author of Mitakshara), Jimutvahana (author of Dayabhaga), Nanda Pandit, etc. whenever they found any conflict between the various Smritis or any ambiguity, incongruity, or casus omissus therein. There is no reason why we cannot use these principles on appropriate occasions. However, it is a matter of deep regret that these principles have rarely been used in our law Courts. It is nowhere mentioned in our Constitution or any other law that only Maxwell's Principles of Interpretation can be used by the Court. We can use any system of interpretation which helps us resolve a difficulty. In certain situations Maxwell's principles wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. One of the illustrations of the Samanjasya principle is the maxim of lost horses and burnt chariot (Nashtashvadaghda Ratha Nyaya). This is based on the story of two men traveling in their respective chariots and one of them losing his horses and the other having his chariot burnt through the outbreak of fire in the village in which they were putting up for the night. The horses that were left were harnessed to the remaining chariot and the two men pursued their journey together. Its teaching is union for mutual advantage, which has been quoted in the 16th Vartika to Panini, and is explained by Patanjali. It is referred to in Kumarila Bhatta's Tantra Vartika. (2) The second situation is a conflict where it is impossible to reconcile the two conflicting texts despite all efforts. In this situation the Vikalpa principle applies, which says that whichever law is more in consonance with reason and justice should be preferred. However, conflict should not be readily assumed and every effort should be made to reconcile conflicting texts. It is only when all efforts of reconciliation fail that the Vikalpa principle is to be resorted to. (3) There is a third situation of a conflict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are prescribed, for the proper performance of which one must borrow details from the Darshapaurnamasi Yagya. In the Rajsuya Yagya, plain ground is directed to be selected as the Vedi for the homas, while in the case of the Darshapaurnamasi, the Vedi should be erected by digging the ground with spade etc. Such an act would be out of place in constructing the Vedi for the homas in the Rajsuya Yagya. Here, there is a Badha (bar) of the particular rule regarding the erection of the Vedi in the Darshapaurnamasi Yagya, being extended to the Rajsuya Yagya. This is the case of Badha by reason of express text. 46. There are other instances in which the inconsistency arises incidentally. For example, in the Sadyaska there is no need of cutting the peg with which the animal is to be tied. But, in the Agni-Somiya Yagya which is the Prakriti of the Sadyaska Yagya, reciting of certain Mantras is prescribed in connection with the cutting of the peg. This recital being out of place in the former Yagya is barred in carrying the Atidesha process. Numerous other illustrations can be given. For example, in the Satra Yagya the selection of Rittik is out of place and so omitted, though this is done in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amveda are to be recited. Are these Samaveda verses to be recited in a low voice or loud voice? The answer, as given in the above Sutra, is that they are to be recited in low voice, for although they are Samavedi verses, yet since they are being recited in a Yajurveda ceremony their attribute must be altered to make it in accordance with the Yajurveda. Commenting on Jaimini 3 : 3 : 9 Kumarila Bhatta says : "The Siddhanta (principle) laid down by this Sutra is that in a case where there is one qualification pertaining to the Accessory by itself and another pertaining to it through the Primary, the former qualification is always to be taken as set aside by the latter. This is because the proper fulfillment of the Primary is the business of the Accessory also as the latter operates solely for the sake of the former. Consequently if, in consideration of its own qualification it were to deprive the Primary of its natural accomplishment then there would be a disruption of that action (the Primary) for the sake of which it was meant to operate. Though in such a case the proper fulfillment of the Primary with all its accompaniments would mean the deprival of the Accessory of its own nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7, this Court has observed that sometimes courts can supply words which have been accidentally omitted. 54. In G.P. Singh's `Principles of Statutory Interpretation' Ninth Edition, 2004 at pages 71-74 several decisions of this Court and foreign Courts have been referred to where the Court has added words to a statute (though cautioning that normally this should not be done). 55. Hence we have to add the aforementioned words at the end of Section 175 otherwise there will be an irreconciliable conflict between Section 174 and Section 175. 56. In our opinion the principle laid down in Section 174 of the Electricity Act, 2003 is the principal or primary whereas the principle laid down in Section 175 is the accessory or subordinate to the principal. Hence Section 174 will prevail over Section 175 in matters where there is any conflict (but no further). 57. In our opinion Section 174 and Section 175 of the Electricity Act, 2003 can be read harmoniously by utilizing the Samanjasya, Badha and Gunapradhana principles of Mimansa. This can be done by holding that when there is any express or implied conflict between the provisions of the Electricity Act, 2003 and any other Act then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atters referred to in clauses (a) to (e) and (g) to (k) in Section 86(1), between the licensee and generating companies can only be resolved by the Commission or an arbitrator appointed by it. This is because there is no restriction in Section 86(1)(f) about the nature of the dispute. 60. We make it clear that it is only with regard to the authority which can adjudicate or arbitrate disputes that the Electricity Act, 2003 will prevail over Section 11 of the Arbitration and Conciliation Act, 1996. However, as regards, the procedure to be followed by the State Commission (or the arbitrator nominated by it) and other matters related to arbitration (other than appointment of the arbitrator) the Arbitration and Conciliation Act, 1996 will apply (except if there is a conflicting provision in the Act of 2003). In other words, Section 86(1)(f) is only restricted to the authority which is to adjudicate or arbitrate between licensees and generating companies. Procedural and other matters relating to such proceedings will of course be governed by Arbitration and Conciliation Act, 1996, unless there is a conflicting provision in the Act of 2003. 61. Since the High Court has appointed an arbi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
